Russell Moore, who needs no introduction, just wrote an article honoring the late Judge Scalia (click here for the article). Whether Scalia is one's hero or not PARTIALLY depends on whether one agrees with his ideology. Note the word partially because nonConservatives are divided on whether to honor Scalia's "contributions" while serving on the Supreme Court. For commenting on his death can be a delicate matter for nonConservatives. For on one hand, one should not want to praise him in order to play it safe with the crowd. On the other hand, we both should never celebrate the death of another person and we need respect those who are in pain because of his passing.
According to Moore, Scalia was a man of principle who, for the most part, stood by his principles even if they caused him to find against groups or causes he favored. Moore praises this practice by Scalia and speaks against being tribal which occurs when one favors one's own group over principles. How well Scalia practiced this trait is debatable though Moore does a good job of bringing this important point out.
As Moore describes Scalia's approach to interpreting The Constitution, one is reminded of those Christians who are Bible literalists. For Moore depicts Scalia as one who restricted his understanding of The Constitution to its actual words and the intent of its writers. This stands in contrast to those who would use today's standards and values in interpreting The Constitution. Thus, whether somethings was literally mentioned in The Constitution would often help determine how Scalia would rule on a case.
Such an apporach helps us understand why Scalia is popular with religiously Conservative Christians. That is because Scalia's views on interpreting The Constitution are very similar to how Conservative Christians apply the Bible in their daily lives. And such an approach would not only distinguish Scalia, it would further honor the writers of The Constitution as being extraordinary men in terms of a foresight that could withstand the test of time and such a view would eliminate the need to read in more modern values and morals into this document.
Thus, by claiming to restrict one's interpretation of documents like The Constitution or the Bible to what could be read from the texts while understanding the intentions of its writers is a claim to be true successors of the writers of these documents. And what is corollary to that is that those who would add to what is understood as the intention of the writers of these documents are considered not to be true followers. Thus we have a battle over who are the true interpreters and followers of documents like the Bible and The Constitution vs those who are not.
There are several things to say about Scalia's way of interpreting The Constitution. First, this division between 2 groups of interpreters of The Constitution can easily remind one of the conflict between Shia and Sunni Muslims. For that conflict is over whose sets of teachers are the true followers of Mohammad. Likewise, political Conservatives use a literalism test to see which jurists are faithful followers of our Founding Fathers.
Second, who is to say what was the original intent of the writers of The Constitution in each part. Political Conservatives claim that they do, but their understanding of the intention of our Founding Fathers includes an acceptance of a number of myths. For the conservatives I've listened to pictured the reason for writing The Constitution being that our founding fathers were interested in creating a government based on freedom and political equality, They often, if ever, mention any events that might have triggered the writing of The Constitution like Shays Rebellion. And only one conservative source I've read even mentions the Constitutional debates as providing part of the context for The Constitution (the Imaginative Conservative website did). And even when they did mention it, they tried to discredit Yates' notes on the debates and favored Madison's.
Third, such an approach to understanding The Constitution both denies that its writers may not have seen all of the implications of what they specified and neglects to mention that our nation, including parts of our Constitution, was built on racism and economic classism. We should remember that a number of our founding fathers owned slaves or defended race-based slavery. Madison was against opening elections to all classes of people in England. We should also remember that one of the reasons for our Revolutionary War was so that our nation could expand westward and doing so meant ethnically cleasning the land of Native Americans. We should also note that it wasn't until the Civil War and immediately after that our government added amendments designed to protect Blacks and to give them certain rights. And even after that, what the new amendments gave, Jim Crow took away. Seeing how this is the case, how adamant should we be in faithfully following the understood original intent of our founding fathers as they wrote The Constitution?
We should finally take a case in point regarding the claims Moore makes about Scalia's commitment to principle over loyalty to group. In the District of Columbia v. Heller case of 2008, Scalia voted with the majority of jurists who overthrew a D.C. ban on owning handguns because they claimed that the 2nd Amendment includes the individual's right to self-protection as a reason for the Amendment (click here).
The dissenting jurists noted that the 2nd Amendment makes no reference to the individual's right to own weapons. Rather, the right to bear arms is set in the context of the need to maintain a militia for the protection of the nation.
What documentation do we have to our founding fathers' intent for this Amendment? Besides the Amendment itself, we have the multiple times in which The Constitution describes the militia (see the latest Last Comment Blocked By Conservatives blogpost after clicking here). But what we also have are writings from the past that sound very much like the writings of many Republicans today. The problem is those writings were provided by those who opposed ratification of The Constitution called Anti-Federalists. So Scalia and others took their writings to interpret the intent of the 2nd Amendment from the Anti-Federalists. But the dissenting judges correctly pointed out that the only context for the right to bear arms listed in the 2nd Amendment was that of the Militia. And the purpose and place of the Militia in our nation was strictly defined by The Constitution. So while Scalia could draw on extra Constitutional sources to say that the intention of the writers, who were not a monolithic group btw, was to establish that the right to bear arms was an individual right, the text of both the Amendment in question and the rest of The Constitution itself do not support his case.
We might also want to note that with today's technology providing the weapons for today's standing army, the weapons needed by the average citizen to repel a tyranical government cannot be procurred and obtained. Thus, technology makes some of the past arguments for the viewing the right to bear arms as being an individual right a moot point.
As Moore praises Scalia for being a man of principle even if he had to decide against a group with which he identified, it appears that on the gun rights vs gun control issue, an extremely important issue to Republicans like Scalia, his principles of relying strictly on the text of The Constitution were not used in deciding the D.C. v. Heller case. Rather, while claiming to following the intent and words of our founding fathers, Scalia's finding was more in line with our founding fathers' counterparts who opposed The Constitution and whose sentiments were not expressed in the 2nd Amendment. We should mention here that the two groups did collaborate on the writing of the amendments This indicates that for all of the claims made about Scalia trying to faithfully follow our founding fathers and how we should imitate this man of principle, the claims were, at least in this case, more for show than for real. So perhaps we could now cover his views on how it is Constitutionally ok for our government to favor a particular religion. And guess which religion Scalia had in mind.
No comments:
Post a Comment