Harsh Reality

Monday, February 15, 2016

R.I.P. Justice Scalia

I was saddened to learn of the passing of Justice Antonin Scalia. He was an intellectual lion on the Supreme Court of the United States and secured his place in history with his wit and defense of the Constitution.

I can't do his work justice (no pun intended) with words. But I will take this opportunity to point out some legal facts that I seem to be the only one pointing out. Facts that are the basis of the swirling chaos in which we find our nation and culture. Justice Scalia spent his career on the Supreme Court fighting against that chaos using the order provided by the actual written words of our Constitution. Shocking, eh? The idea that the document says what it says.

Scalia was the most vilified member of the Court, but only by those who, like spoiled children told they couldn't have a toy and threw a tantrum and claimed they hated their parents, are angry with American culture and the Constitution. Scalia merely read the actual document. And that's the rub that got him so hated. Every special interest in the world has lately come screaming to the doors of America's federal courts. Insisting that whatever they want is actually a "Right". I blame the American educational system for this failure to understand what a Constitutional Right actually is. In America today, basically anything that anyone really, really wants is now generically referred-to as a "Right". And our elected officials aren't helping in this matter, with Barack Obama & Bernie Sanders running around telling everyone that healthcare is a right. That is a false statement. It's legally and Constitutionally false. But that's another column.

Scalia was like the dad who understood what money was in the bank account and whether the family could afford that new toy that junior was demanding. No matter how much the kid really, really wanted that toy, or how much of a tantrum he threw, Scalia actually read the Constitution and refused to agree that something was written there that actually wasn't there.

Right to abortion? Where is that in the Constitution? It comes out of the Right to Privacy? Where is that in the Constitution? You want a right to gay marriage? On what conceivable basis does the Constitution grant that right that never existed before? "Well...because we really, really WANT it to be in there!!!"

This is why we have the chaos in America that we have. Because the foundation of our nation has been turned completely upside down. And, even that is just being made up as we go along. Like playing a game where the rules are constantly being changed, made up, teams are being added or taken away and the score is just whatever some officials say it is at any given moment and who are changed out every now and then for officials who say the score is something completely different. Chaos. Scalia and my legal colleagues like Scalia know that there needs to be a rulebook. And, if someone wants to change a rule, then there is a process for doing so. Officials (judges) should just point out violations of the rules, not make them up or decide what they should be as screaming protesters demand special rules be enforced about which nobody had ever known nor had a chance to be heard.

But the way American jurisprudence is now is not the way it was designed. There have been two shifts of tectonic magnitude in American law. The Constitution no longer actually means anything. And the shift away from the view of the Constitution as controlling over the government's relationship to citizens and toward the view of the Constitution as controlling citizens' relationships to one another.

The Constitution is the agreement. The rule book. The Bill of Rights and the Amendments were to be locked-in and unassailable to all citizens. Protections that individuals had against government intrusion. The Supreme Court's role was basically to slap down attempts by the government to violate those boundaries that were specifically enumerated. Our government - especially the Supreme Court - has completely reversed the rules. Now, the Court simply makes up new rules as they are demanded by the loudest group protesting outside. Nothing needs to be written down or interpreted, because the Court can simply make it up. Has anyone noticed that nobody's even tried to amend the Constitution since the big push for the ERA back in the mid-70s? (Yes, there was an Amendment in the early '90s that finally made it in after over 200 years sitting on someone's desk. I got that. But a 200 year old Amendment that someone just noticed isn't what I'm talking about.) Because nobody HAS to amend the Constitution anymore. The document doesn't matter. The actual words that are written in that document don't matter. Because the "Constitution" is just anything anyone can get 5 Justices to agree SHOULD be in there.

The second dangerous reversal is instead of the Constitution defining limits on how the government treats the people, it's morphed into a document about how people are supposed to treat other people. And people have "rights" against other people. We have societal and cultural chaos because the law has been turned upside down and is being made up as we go along.

Antonin Scalia was a firewall against this flipping of the foundation of our nation. One who preserved order, even when it was unpopular. He cannot be replaced. But he will be missed.

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