For Justice Scalia – a Most Uncommon Question

Setting the Context

The sudden death of Antonin Scalia removed from us a towering figure. Sitting on the bench of SCOTUS (The Supreme Court of the United States) for thirty years, he gained staunch support and vigorous opposition. Our goal is not to justify either side; instead, it’s time to ask a question.

Is it foolhardy for a guy with no legal training to put a question to one so prominent, so highly esteemed as Justice Scalia? I think not. As some quip, "There are no stupid questions… only wrong answers." So I’ll set out my simple question knowing that you would respond with honesty. If I’m lucky, others will do the same and we’ll all be the wiser.

Posing the Question

Were they not mortals like the rest of us, those nine-at-a-time on the bench -- even – I hesitate to use the word but I must – flawed as we all are? If so, why do we hold them in unique veneration, as if they had god-like power over us?

And if, as some would claim, as individuals they had shortcomings but all such problems were somehow cancelled out in the give and take of their collective wisdom, the question gives rise to a series of even sharper questions: how many people are needed in a synchronized search for truth to guarantee a good result? Two? Nine? Three hundred and thirty million – maybe the collective wisdom of the American public today? Which raises the next question: exactly what level of wisdom is required, and how do we know the framers met that standard? (Even if we assume that that elusive something called wisdom partners with intelligence, what exactly was the IQ range among the fathers of the country? Even more, how long does it take for collective wisdom to emerge in a group process?)

Let’s take our questioning a step further: since, clearly, the Founding Fathers did not achieve perfection on the first try but humbly, realistically, opened the door to amendments based on the judgment of others, should we not accept that change can come through wide experience among millions as well as through the amazing vision of a small elite? Is an amendment not, in the final analysis, a reflection of new insight into what the nation needs as it seeks to reach its full goal, its full potential as a people?

This is not, Mr. Justice, to diminish the importance of “original intent.” Rather, it is to raise the question why original intent alone should be seen as binding for all time to come; why what was going on in the heads of a few white men of privilege --if indeed we can even know that-- should forever be shielded from rethinking. Is it perhaps time to acknowledge, as Mark Twain is supposed to have said, that the search for truth is bigger than the search for facts?

The Question in Context

Civilization, for all its shortcomings, is smart enough to confer on no other product of human creation such exalted status.

The Bible probably comes closest, of all the world’s writings, to being above such human critiquing. In it we read

The earth is the Lord’s, and everything it contains;
the world, even everyone who lives on it.
(Psalm 24)

The words are credited to David, the second King of Israel, who lived about 3,000 years ago. Would originalism – your system for interpreting documents– not require us to conclude that David’s affirmation applies only to a flat earth and only to the tribes he knew about? Forget the “blue marble” spinning in space …too bad about the Inuit of the Arctic, the aboriginals of Australia, the residents of Greece and Rome and – yes – you and me – given that he had no inkling of our time in history, our way of life or who we really are as persons. Modern understandings of space would have seemed preposterous; even the most primitive of world maps -- mind-stretchers all -- had not been invented in David’s day.

Yet – here is the point: the common – let us say common-sense -- interpretation given by multi-millions: people of faith and seekers after meaning and students of culture everywhere, is that David’s concept has value: it opens new vistas, its message stretches us beyond the shackles of words and David’s puny scientific knowledge.

Mountains of similar examples can be cited. Do people not find insight in Shakespeare and the philosophies of Socrates and Aristotle, in Tolstoy and Lao Tzu and Nelson Mandela and the Q’ran and Albert Einstein and Harper Lee and a thousand others? Fully to grasp what was going on in the mind of Vincent van Gogh or Wolfgang Amadeus Mozart or Marie Curie may forever be beyond our powers, but what they created has power beyond intent. When Columbus came to an unknown place, he thought it was the Orient; should we forever be locked into his mistake simply because what we call the Far East was his original intent?

So the question morphs from What did the writer/artist/scientist/creative genius know at that time? to How can we apply their discernment to our need?

Does this mean not caring about original intent? No way! Rather, it may say to us that understanding the mindset of the originators is only half the equation.

Somehow, to this observer, it appears that you have operated from a different principle. If the point we have just made is correct, you set out a single exception to the general rule: The United States Constitution. To cite a particular example, you seem to say that same-sex marriage is not a constitutional right because the framers did not know about it. The possibility didn’t exist then, so they couldn’t have thought about it, so it shouldn’t exist now. Somehow, that reasoning doesn’t square with the practice that most of us apply every day to other issues. Does that fundamental discrepancy not call for further debate – whether in the Court or in the public arena – on the merits of the exception?

Thank you, Mr. Justice, for stimulating this conversation. Thanks especially for listening to a wonderment from an ordinary citizen – of this country and of the world. Thank you, not just for myself, but on behalf of that ever-growing number who seek to map and follow the way to a better world. 


Update on Two Days. Two Events

January’s post “Two Days, Two Events” prompted some readers to act. If you also are interested in follow-up, here’s the info: you need:

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