Justice Antonin Scalia died on a Texas hunting trip recently, where hand raised birds were nurtured to the edge of maturity, only to be blown to smithereens on their maiden flights by the Judge who gave the world DC v. Heller. This decision affirmed that Americans have the personal right to keep and bear arms. As a Constitutional “originalist”, you would think that the Hammer of the Radical Right would have known that The Second Amendment was crafted to give the pre-federalist states the right to form militias for the common defense. This had nothing to do with blasting God’s defenseless creatures to atoms for a little R & R. It had nothing to do with high schools being shot up or with toddlers finding, and then firing, loaded weapons they spied beside the See and Say and the X Box controls.
Suddenly, Senate Majority Leader, Mitch McConnell, is the Great Populist and is calling for a national referendum on the man or woman who will refill Scalia’s capacious judicial robes. Scalia wrongly equated money with speech in the Citizens United decision and as a Constitutional “originalist”, he should have known that the Founders could have never have conceived of a vast, electronic, media infrastructure fed by the checkbooks of lobbyists and oligarchs.
The Constitution provides for the President to appoint Supreme Court nominees while the Senate “advises and consents” until the seat is filled. The document says nothing about balling things up until a GOP Presidential candidate can replace the sitting President, who is the only one charged with fulfilling his Constitutionally mandated role. At the base of this contempt for written law on the part of the GOP is the pervasive belief that Obama was never legitimate in the first place. He is a Democrat, he is black and in elephant eyes, he doesn’t understand who he is supposed to be working for. This is a nation of lobbyists, not laws. It is a nation of men, not Constitutional faith. As such, President Obama should use any means available to him to restore the Judicial Branch of government to nominal function.
Scalia and other Republicans have described the Constitution as dead. This “originalism” fetish of Scalia’s is bankrupt for this reason. In Colonial times, only white men who owned land could vote. By Antonin’s reckoning, he should have railed against the 19th Amendment. Women have only had the ability to vote since 1920 and as a white man with no land to my name, the vote should be denied to me as well. Slavery is referenced in the founding document too. Should that peculiar institution be revived to satisfy Scalia’s originalism? The Constitution is for those who live under it and as brilliant and visionary as James Madison and company were, they could not inscribe every eventuality onto parchment for all time. Precedent and the preservation of rights and liberties enshrined in the Constitution should guide The Supreme Court, not loopy “originalism”, that pays no heed to the growth of freedom from that first Constitutional seed.
The government is now beating up Apple to provide a reverse engineered back door to their encryption proof IPhone 5C. If Apple rolls over here, as it were, they will be little more that an ad hoc brick in the national security state. Get a damned warrant! Beyond that, it is not the duty of a private corporation to provide a skeleton key to Big Brother with every IPhone purchase. Below, Apple’s Tim Cook tells the insufferable Charlie Rose where he stands. This was before Cook refused a federal magistrate’s order that Cook provide a back door in to IPhones without a warrant.
Touching one last time on Scallia’s originalism, the 18th Century equivalent of the IPhone debate would be for the government to be given a copy of all of your letters, bills or other correspondence on demand and with no warrant in the interest of national security. Only technology changes. The right to keep information secure does not change and the Fourth Amendment’s language clearly covers anything that Tim Cook can dream up. Maybe Tim should include an app for the Constitution to keep the FBI honest. The Constitution is the most precious hand raised bird ever hatched. It did not gain flight only to be shot down by radicals wearing the camouflage of Constitutional purity.
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized.”
Originalism? There you go, Justice Scalia.