I’ve grown up with the law. Literally. My parents met in law school, and my mom was pregnant with me when she graduated. I spent the first 6 months of my life nestled in her arms as she studied for the bar exam (although now that I have my own darling little hooligans, I can barely believe I was that good of a baby. My mom is just THAT SMART for passing the bar on the first try.).
Many Saturdays and school holidays were spent at my parents’ law office; making forts under my dad’s big walnut desk, coloring pictures with florescent highlighters, and making paperclip chain necklaces. I didn’t understand what they did, but I saw that they loved it. I knew they worked passionately and tirelessly. I knew I wanted to be just like them when I grew up.
In second grade, my teacher asked us students to share what we would like to be when we grew up. After several ballerinas, teachers, and firemen, it was my turn to answer. “A United States Supreme Court Justice. But I’d settle for senator.” What a mouth I had even at the age of eight!
Needless to say, I’ve always been fascinated with the law. It’s probably why I’m so passionate about politics. I want politicians to uphold the Constitution. You know, that thing upon which our laws are based? That simple document that built the greatest nation the world has ever seen? The one signed by George Washington, James Madison, Alexander Hamilton, and lots of other dudes in funny looking clothes? Yeah, that’s the one.
So it’s no surprise that sparks of excitement practically shot out my fingers and toes when my mom invited me to attend a lecture by the Honorable Antonin Scalia, of the United States Supreme Court. Justice Scalia (a Reagan nominee) is an outspoken proponent of Constitutional Orginalism, the idea that the Constitution is not a living, breathing document that is given to morph through the years into something unrecognizable to the founders of our great nation. A constitutional originalist understands that times and technology may change, but that we must calculate the trajectory of the meaning of the founders in the original document.
I had an invitation to hear the foremost authority in the country talk about an issue that is near and dear to me. To say that I was thrilled would be an understatement. I even showed up two hours early to the event. Well, you never know if you’re going to get a flat tire, or maybe spill your Coke Zero on your blouse and have to make a mad dash to the nearest clothing store to buy a new, unstained shirt. Thankfully, I made it to the venue in plenty of time, and managed to snag a seat in the third row.
The auditorium filled up behind me while jittery nervousness coursed through my veins. Justice Scalia is a man that I’ve held in high esteem for years, and everyone knows that pedestals have a tendency to crumble. The room began to hush as four very scholarly looking professors made their way onto the stage. Mike Rappaport (the Director for Study of Constitutional Originalism at USD) introduced the man of the hour.
Within the first 27 seconds, I knew that my image of Justice Scalia would not come crumbling to the ground. He was at ease. He made jokes with the professors and the audience. His defense of “the enduring Constitution” was clearly defined and well articulated. He didn’t talk above our heads, but he didn’t dumb it down either. He was not boring.
And now I have a new favorite buzz term: Constitutional Originalism. Justice Scalia explained that if judges do not hold to originalism, they will rewrite the Constitution, which would change the very nature of America. (Rewriting the constitution should not be confused with amendments, which have done wonderful things like abolishing slavery and giving equal rights to men and women of all skin colors.)
Here’s what I learned:
It keeps up with the times. A common criticism of originalism is that it’s impractical. The Constitution was implemented long before vehicles, computers, or indoor plumbing were an everyday part of life. How is it possible to stay true to such an ancient document in a modern world? Justice Scalia gave the example of Saia v. New York, a case in which amplified sound was an issue. Of course there was no electronically amplified sound at the time of the Constitution. A non-originalist judge might make up any new rule that he felt like on the particular day that the case was handed to him. An originalist judge would try to figure out how our founders would’ve ruled on such a case given the current technology. Even though there wasn’t electronically amplified sound 200 years ago, there were certainly public nuisances. The originalist then could focus on whether the case violated public nuisance laws.
Even liberals can be originalists- In the summer of 2008, the Supreme Court saw a case regarding the right to keep and bear arms. In DC v. Heller, the court held that the Second Amendment to the United States Constitution protects an individual’s right to possess a firearm for private use. All of the opinions issued, even the two dissents, were originalist opinions. Although they arrived at different conclusions, the Justices examined what the founders intended in, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
It is ok (and sometimes necessary) to impose limitations on Constitutional rights. A convicted felon does not have a right as an individual to keep and bear arms. Drunk drivers may be discriminated against by having their licenses revoked. Screaming, “FIRE!” in a crowded public place as a joke does not fall within the bounds of free speech.
It’s hard to do the right thing. Part of the fun of being a non-originalist is that you can make up whatever you like. If our courts and legislature do not hold true to the meaning and intent of the Constitution, what do they cling to? Their own convictions and morality? It’s much easier to make decisions based on how you feel, or upon popular opinion, than it is to make them based on that mean old rule book.
