I mourn Antonin Scalia, the man. He was, by all accounts, a man of intelligence, humor and charm. But I will not miss Antonin Scalia the jurist. He had a pinched view of the Constitution that was for another time.
He was a textualist, by which he meant that a law says what its plain language states, not what the people adopting it meant. Unless the people adopting it were the founding fathers, in which case the law (the Constitution) means what they meant it to say. He called that approach being an originalist. I call it expedient.
Enough has been written about the state of politics, suffrage and slavery at the time of the founding of our country that it need not be repeated. Suffice it to say that under those circumstances the Constitution is an amazingly democratic and pluralistic governing credo. Which is why it has endured.
Our society is very different today than it was then. We have adapted to tremendous shifts in economic, political and cultural norms. This is why we have endured. No organism, amoeba or nation, can survive and flourish if it fails to adapt to a changing environment.
The founders did not contemplate today’s conditions. They could not have. To try to gather their views, as if by seance, to inform decisions about how we should live together today, is folly. Most of us aren’t even interested in our father’s or grandfather’s old-fashioned opinions about how we should live our lives, never mind Thomas Jefferson’s.
Justice Scalia took pride in saying that he did not let his personal views inform his judicial judgements. I do not believe that.
He was unabashedly homophobic. He did not advocate protecting women’s reproductive rights. He thought it was fine for us all to carry arms, no matter the gun violence in our cities. He said once, only half joking, that he might draw the line at shoulder-held anti-aircraft weapons.
He was, in his devout adherence to his Roman Catholicism and to his personal views about what is socially moral and acceptable, a man of an earlier time. He did not like the cultural changes the were thrust upon him. And he did not like expanding the interpretation of the Constitution to accommodate them. He fought back by saying those expansions were not part of the plain text, were not part of what the founders had in mind, and so were illegitimate.
He did not like the right to privacy found in Roe v. Wade. He thought the concept of substantive due process was an oxymoron. He did not think Brown v. Board was well decided. He thought it was not a good thing, through affirmative action, to let blacks swim in educational waters that he thought might be too deep for them.
He was an eighteenth-century man railing against the modern world. Women, gays, blacks. He resisted change, but change we must.
So long, Antonin. My condolences to your family and friends (among them your ideological opposites, Ruth Bader Ginsberg and Elena Kagan, which says a lot about you as a friend). I’m not religious, but you were. I hope you’re up there in heaven with Jefferson and Adams slapping you on the back, welcoming you home.
