Constiutional Originalism

Supreme Court Justice Antonin Scalia believes that the Constitution is a fixed, legal document ushered into being by the Founding Fathers with the role of the Supreme Court to strictly interpret based on the Founder’s intent. Here’s why his view is severely flawed:

1) The Founding Fathers did not have all the answers. And they were not specific in the document they created. It is obviously meant as a structure to build upon. In fact, they knew this and if we are to stictly interpret their original intent, then we need to view the constitution as more than simply a legal document to be administratively intepreted. Our country and this life that we lead are more complex than a single piece of paper.

2) Scalia’s emphasis on the legislative branch of government denies two very imporant governmental considerations:

i. Balance of power. Western tradition compels us to view judges as possessing wisdom beyond passing fads and current fascinations. Without the ability to interpret the law of the land in a manner that favors this wisdom over prevailing trends, the Supreme Court becomes merely an administrative body that quibbles over minor details of technical legal matters. Scalia’s ideal Supreme Court does not share any kind of real power with the other branches of government.

ii. The limitations of strict democracy. Regardless of how laws are formed by the legislative branch, there are inherent limitations that stem simply from the inability by this branch of government to closely examine the possible consequences of every single piece of legislation that is passed. Even with oversight by the executive, there are still possible unintended consequences of seemingly benign public policy. Without a powerful third branch of government, we are left with, at best, gross inequities, and, at worst, simple mob rule. The rights of the minority must be protected in order for a society to be free of fascism. A strong Supreme Court makes this more likely. A weak Supreme Court open the door for the wealthy, influential elites of either political persuasion to coerce the country onto paths that restrict, rather than encourage, positive freedoms.


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