The Debate Over Antonin Scalia’s Replacement

By JAMES K. FITZPATRICK

I can picture myself — if I were a modern high school student — trying to make sense of all the shouting between Republicans and Democrats over how to proceed with replacing the recently deceased Antonin Scalia on the Supreme Court. I think I would be asking myself what people think is so important about whether a Supreme Court Justice is an “originalist,” like Scalia, or an advocate of interpreting the Constitution as a “living document.”
The teenage version of myself would be scratching his head over why this question would matter to anyone other than historians and constitutional law scholars. What difference would it make to the average citizen if President Obama gets to pick a Supreme Court justice who is a proponent of the Constitution as a living document? Why would the Republicans want to pull out all the stops to block Obama from doing that?
The coming months will provide high school teachers and home-schooling parents a valuable opportunity to explore the differences between these two understandings of how to view the Constitution. The newspapers, journals of opinion, and talk shows should provide a wealth of material to use as the basis of classroom discussions.
In strictly academic terms, if we are looking for the answer that a student would use in a multiple choice question, for example, the difference between the two views is straightforward. Originalists, or “strict constructionists,” believe the responsibility of Supreme Court justices is to interpret the Constitution as reasonable people living at the time it was adopted would interpret and implement it; that its meaning cannot be changed other than by amending the Constitution.
In Scalia’s words, the job of the Supreme Court justice is to take the words “as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words.”
In contrast, the advocates of interpreting the Constitution as a “living document,” or “loose constructionists” as they often described, hold this to be too rigid an approach. They argue we must take a more dynamic view of the Constitution. They insist that ideals such as “liberty” and “equal protection under the laws” were inserted into the Constitution by the Framers because they are timeless notions that are likely to change with the passage of time, and that Supreme Court justices should be free to make their decisions with those changes in mind.
But this leaves us with the question of why Republicans and conservatives in almost every instance prefer the originalist approach, and why liberals and Democrats support the view of the Constitution as a “living document.”
The barricades between the two sides first went up — in a manner that the general public could see, at any rate — during the time that Earl Warren was chief justice of the Supreme Court in the 1950s and 1960s. The Warren Court took it upon itself to right certain societal wrongs, which the majority on the court was convinced legislative bodies had failed to correct.
Archibald Cox, a hero to American liberals for his role as special prosecutor against Richard Nixon during the Watergate investigation, made the case for this new activism in his 1976 book The Role of the Government in American Government: “By the 1950s the political atmosphere had changed. The legislative process, even at its best, became resistant to libertarian, humanitarian, and egalitarian impulses. At worst, the legislatures became repressive, in the libertarian view, because of the Cold War, increased crime, the fear of social disorder.”
How did the Supreme Court act to correct the societal ills that they felt were unaddressed by the country’s legislative bodies? James Jackson Kilpatrick summarized what took place in a 1969 article in National Review entitled “A Very Different Constitution”: “When the Warren years began, there was little doubt that ‘obscenity’ could be reasonably well-defined, and punished, under both state and federal law. The right of public schools to conduct voluntary religious observances, such as class prayers and baccalaureate sermons, was not challenged.” Also, “the admissibility of certain evidence in criminal proceedings, even if the police had obtained it unlawfully, was widely sanctioned,” as was the power of the states to operate schools without using forced busing to achieve racial integration.
A series of decisions by the Supreme Court changed all this, and then some. In the years after Kilpatrick wrote his article, we saw the court legalize abortion and same-sex marriage. In every instance, the court moved against majority opinion in order to enforce the view that prevailed in the media and in our universities on the matter at hand, finding rights in the Constitution that were not thought to be there at the time the Constitution was ratified. This was their understanding of the Constitution as a “living document.”
Scalia and the originalists see this as a threat to a democratic society, as a process through which the will of the people is replaced by the views of liberal elites, carried out by unelected Supreme Court justices who agree with the elites ideologically.
Liberals who favor approaching the Constitution as a living document disagree. They argue that the court’s activism has protected minority viewpoints that should not be subject to the will of the majority; that there are times when the numerical majority may be narrow-minded, bigoted, intolerant, and backward thinking, and that judicial activists are doing the same thing that the Founding Fathers did when they inserted the Bill of Rights into the Constitution — placing certain rights beyond the control of majority opinion.
On one level, that is a reasonable and high-minded view of the Constitution. Our freedom of religion and freedom of speech, for example, ought not be left to the mercy of the majority in society.
The question, however, is whether the “right” to abort an unborn child, print and distribute pornography, or marry someone of the same sex is in the same category as the above. Originalists argue that protecting these rights was not the intent of the framers of the Constitution. They underscore their argument by pointing out that abortion, pornography, and same-sex marriage were illegal at the time the Constitution was written and for many decades thereafter, and that it was not the original intent of the framers of the Constitution to change that situation — and that there is no justification for the Supreme Court to proclaim them legal later in history.
The loose constructionists’ answer is that as times and societal opinions change, it is the responsibility of the Supreme Court to reflect the change. The originalists counter that it is the elected representatives of the people who should make these changes through legislative action, not unelected Supreme Court justices.
But what if achieving reform through the legislative process is not likely to occur in a manner timely enough for those who feel that their rights are being denied? Should they be required to bide their time until their elected representatives act? Originalists often cite Felix Frankfurter, an early 20th-century Supreme Court justice held in high esteem by both liberals and conservatives, to answer this objection:
“There is not under our Constitution a judicial remedy for every political mischief, for every undesirable exercise of legislative power. The framers carefully and with deliberate forethought refused so to enthrone the judiciary. . . . In a democratic society like ours, relief must come through an aroused popular conscience that sears the conscience of the people’s representatives.”
As the debate over Justice Scalia’s replacement unfolds over the coming months, we will be given an opportunity to illustrate for our young people the roots of the conservative preference for originalism and the liberal preference for loose constructionism.
It should become clear that those who are in agreement with the liberal societal changes brought about by the Supreme Court’s decisions over the past half-century, favor giving the court the power to continue making these changes, perhaps in the future on issues such as the Second Amendment right for Americans to bear arms. In contrast, those who favor the traditional values held by the mainstream of society, will prefer that Supreme Court justices not be given the power to act against majority opinion in that manner.

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Readers are invited to submit comments and questions about this and other educational issues. The e-mail address for First Teachers is fitzpatrijames@sbcglobal.net, and the mailing address is P.O. Box 15, Wallingford CT 06492.