Scalia, Air Bud, and Progressive Constitutionalism

Bloggified by Jake on Thursday, February 18, 2016

The death of Antonin Scalia has drawn me back into the mystery of how his mind worked. While the political right would like to suggest Scalia was a paragon of incorruptible devotion to the Constitution, many of his decisions are hypocritical and politically biased, giving fuel to critics who interpreted his rulings as anywhere from curmudgeonly and out of touch to racist, homophobic, and outright evil.

But the arch-conservative Scalia was close friends with liberal Justices Sonia Sotomayor, Ruth Bader Ginsberg, and Elena Kagan, and in the days following his death, several stories came out that he'd openly lobbied the Obama White House to appoint Kagan. Stephen Colbert shared a story about how Scalia was one of the few targets of his 2006 White House Correspondent's Dinner who could take a joke. Scalia was widely recognized for appreciating intellectualism, even when--or possibly especially when--it challenged his own views.

But that passion for intellectualism makes it all the more frustrating that Scalia purposely blinded himself to vast swaths of knowledge and logic. In 2013, Justice Scalia told an interviewer with New York magazine that he believed in the devil:
You’re looking at me as though I’m weird. ... I mean, Jesus Christ believed in the Devil! It’s in the Gospels! ... Most of mankind has believed in the Devil, for all of history. Many more intelligent people than you or me have believed in the Devil.
One could the same argument against indoor plumbing. "Benjamin Franklin never used a flush toilet! Sir Isaac Newton never took a hot shower! Are you saying you're better and smarter than they were? You're looking at me as though I'm weird because I poop behind bushes and bathe in the pond at the nearby golf course."

The Framers' Nightmare
One of the concerns the framers of the Constitution had was that creating the Bill of Rights would effectively limit those rights to the ones listed. In saying, "These are the rights enjoyed by U.S. citizens," they were on the hook to figure out every single right extended to Americans lest one be overlooked and thereby be denied. And, sure enough, just over two years after ratification of the Constitution, Congress passed the 11th Amendment as an "Oh, yeah, and another thing!" clause.

As a constitutional originalist, Scalia embodied those framers' fear. Any understood right that isn't specifically written in black and white isn't really a right. If you're convicted of a crime you didn't commit and sentenced to be executed, but later prove your innocence, you have the right not to be put to death, right? Not according to Scalia.

This argument is one (of admittedly many) that Scalia's detractors have jumped on to show his callous nature. That's not a tough sell when he states, "This Court has never held that the Constitution forbids the execution of a convicted defendant who ... is later able to convince a habeas court that he is 'actually' innocent." But if you look closely, Scalia's not saying you should execute the innocent man, only that there's no law against it.

In essence, Justice Antonin Scalia is the judge in a kids' movie who declares, "There's no rule that says a dog can't play basketball/a mule can't play football/a monkey can't play third base... I'll allow it!"

Frustrating as that line of thinking may be--particularly if you're a team of hard-working tween basketball players who've spent all season preparing to win the regional championship only to be embarrassed because you never bothered to learn how to play defense against a golden retriever--there is a value to challenging seemingly obvious, logical conclusions. Scalia was most known for presenting complicated hypotheticals to lawyers during oral arguments. Many of these questions have been presented as evidence of Scalia's closed-minded, regressive evilness, when, in context, they can be seen as legitimate questions an attorney should be prepared to answer, but taken to an extreme.

Many of the examples getting the most play come from cases involving LGBT rights, and particularly same-sex marriage. Scalia often posed the question of whether Americans have the right to be offended by gays, and argued they do, just as they have the right to be offended by any number of other things. He suggested bosses who may be uncomfortable with homosexuality have the right to fire gay employees or to hire a straight candidate for a job over a gay one. He noted many communities had long-standing traditional reasons to outlaw homosexuality.

Liberals who hear those comments cringe and conclude Scalia made them because he harbors those beliefs in his own heart. And while it's entirely possible--and even probable--that he did to at least a certain extent, progressives should not shy away from Scalia's style.

In fact, Scalia could be the role model progressives need.

Can Constitutionalism be Progressive?
Perhaps the greatest failing of recent generations is the lack of new Constitutional amendments. The 27th Amendment was added in 1992, but was proposed in 1789 and took more than 202 years to ratify. All it does is set guidelines that put a waiting period on raises that Congress gives itself, and was originally part of Article One in James Madison's early drafts. The 26th Amendment lowering the voting age from 21 to 18 was ratified in March of 1971.

That means six current U.S. senators and more than 50 representatives have not had an constitutional amendment proposed and ratified in their lifetimes, and House Speaker Paul Ryan was 14 months old. 48 of the 100 senators were younger than 17 at the time the 26th Amendment took effect, including Republican presidential hopefuls Lindsey Graham, who was 15, Rand Paul, who'd just turned eight, and Ted Cruz and Marco Rubio, who were both shy of their first birthday. Among other 2016 candidates, Chris Christie and Martin O'Malley were both nine, Scott Walker was four, and Bobby Jindal wouldn't be born for another three months.

This has led to a shift in perception of the Constitution from a living document meant to flexibly be adapted to reflect the times to a rigid, immutable document reflecting some attributed hero worship that paints the Founding Fathers as infallible demigods. Listen to Sean Hannity and others and you will hear sincere suggestion that the Constitution was divinely inspired and should be treated with the same reverence as the Bible.

And like the Bible, the lack of updates and clarifications puts an onus on interpretation of the existing text. But when a Baptist minster and a Lutheran pastor interpret a passage from Ecclesiastes differently, the effect is limited to their congregations and not legally binding for everyone else in their state or nationwide. For more than four decades, it has fallen on the courts to determine and interpret the changing philosophies and sensibilities of American culture, and justify them legally. Over time, this pattern favors liberal beliefs, but progressives shouldn't be content.

Rights granted by a court case only open the door for more court cases attempting to reverse the decision. It's been 43 years since Roe v. Wade, but multiple lawsuits are still filed every year for the sole purpose of chipping away at the legality and availability of abortions. A SCOTUS ruling in favor of same-sex marriage didn't end the controversy. It only signaled a need for opponents to find new tactics to continue their intolerance.

Progressives have ample reason to despise Scalia for siding against the LGBT community at every opportunity or giving corporations the powers to skew political agendas and sidestep regulation or for ruling health care isn't a basic human right while denying your employees birth control is. But rather than raging against the biases of a dead man, we should instead be upset that his rulings and hypothetical scenarios didn't lead us to changes he couldn't argue.

Obama's plan for replacing Scalia should be to find a progressive voice who will be loudly frustrated when he has to side with Justices Clarence Thomas and Samuel Alito. Find a Justice who will say things like, "The framers of the Constitution never considered health care or gay marriage or abortions a right. If I am to interpret the 'spirit in which the Constitution was written,' I am, unfortunately, forced to consider that spirit to be largely misogynistic, racist, homophobic, and with a limited scope of knowledge of science and technology."

Pose those same arguments Scalia would, but use them to drive proponents to create real and lasting change by amending the Constitution rather than filing more and more competing court cases. Instead of making a case for why the 14th Amendment should also apply to gender discrimination, amend the Constitution to outlaw gender discrimination. Instead of figuring out a way to tie the forced housing of soldiers to campaign financing, get states to ratify a provision limiting the amount of funds candidates and SuperPACs can receive from wealthy donors. Instead of mining every word of Article One to justify providing health care to American citizens, make the Constitution explicitly state that the United States considers health care a right that should be provided to all citizens.

And once we take care of all the social inequities, our fine nation can finally come around to the agreement that dogs do not belong on the basketball court!

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