Societies only get better…they never rot

Nick Pfosi / The Tufts Daily

I had the privilege of seeing Supreme Court Justice Antonin Scalia speak last night.

Whatever I may think of Justice Scalia or his rulings, I have tremendous respect for anyone who can make a clear and compelling argument for their view. It’s okay for people to disagree with me, as long as they can explain their disagreement (more or less) politely and intelligibly .

As you may imagine, Justice Scalia was no disappointment in this regard.

He spoke about his commitment to an originalist view of the Constitution – interpreting laws based off what they were understood to mean at the time the people voted for them.

The Eighth Amendment prohibits cruel and unusual punishment, but when ratified in 1791 no one thought hanging was unconstitutional. Therefore capital punishment is constitutional even if we might consider it cruel and unusual today.

We, the people, can advocate and vote to change the law – federally or in our own state – but judges shouldn’t interpret “cruel and unusual” based off today’s standards, Justice Scalia argues.

Frankly, I’ve never been an originalist. Since at least elementary school, the idea of the Constition as a living document appealed to me. Our founding fathers were certainly courageous, bold, and innovative. I do have a lot of respect for them. But I don’t think they had my interests in mind when crafting the Constitution.

They were creating a society from the perspective of wealthy, educated, property-owning, straight, white men. Even if you assume they were inclusive for their day, genuinely trying to craft a society that would be good for everyone, that narrow perspective is too exclusive to sustain a fair and equitable society.

So what’s the danger of the “living document” model?

Justice Scalia argued that interpreting the Constitution based off today’s morals only works if you assume societies only get better. That they never rot.

The originalist approach protects the people from corrupt regimes.

If modern morals deem that waterboarding or other forms of torture are not cruel and unusual, then it becomes okay because we can interpret it as constitutional. If modern morals deem that gay people aren’t entitled to the same rights as straight people, that unborn fetuses have more rights than their mothers, that governments should do whatever it takes to stop terrorism – then that changes what becomes interpreted as constitutional.

And a political litmus test for judges becomes the only way to determine who will make a good Justice – who will share your moral interpretation.

This argument makes a lot of sense to me. I do think societies rot. I do think we need to protect ourselves from corrupt regimes.

But here’s the problem.

There is a lot of corruption in our regime. And the system is not protecting us.

Justice Scalia said the people should take their concerns to Congress. That it’s Congress’ role to interpret modern needs and to implement laws adjusting to them.

That may be the originalist’s view of Congress’ purpose, but as you may have noticed, that venerable body is not getting anything done these days.

So where does that leave us? Left in endless shouting matches and political posturing?

The courts are our only hope for justice.

And maybe Justice Scalia is right. Maybe they shouldn’t be. Maybe we should be more careful about creating a system that could strip our freedoms away just as easily as it can provide them.

But in the face of injustice, what else are we to do?


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