A few days ago, Supreme Court justices Antonin Scalia and Stephen Breyer paid a visit to the Leo Rich Theatre in the Tucson Convention Center, courtesy of the UA’s William H. Rehnquist Center. Playful banter evoked laughs throughout the crowd as the two spatted and explained their individual approaches to interpreting law and the Constitution.
While Breyer showed deep respect for the Constitution and its authors, he also illustrated a knowledgeable acceptance of the Constitution’s limits and need for analysis and ongoing interpretation.
When the founders wrote the U.S. Constitution, the world was a vastly different place than it is today.
There weren’t protests for the legalization of same-sex marriage. Women’s right to vote was unheard of, let alone their right to choose. And the health care system hadn’t even been conceived, along with nuclear weapons, spacecrafts, televisions and computers, to name a few.
The founders, though extremely intellectual, could never have anticipated the situations our nation currently faces.
However, even in the face of these radical and fundamental changes, Scalia displayed his strict constitutionalism ad nauseam, and delivered his faulty view of literal Constitution interpretation. Though far more versed in every aspect of constitutional scholarship and legal theory than this sophomore Daily Wildcat columnist, Scalia’s belief that the 18th century document is infallible and free of the need for evolved constitutional analysis, seems archaic, illogical and detrimental to society as a whole.
Strict constitutionalism is generally based on the main ideas that the legislative branch should rarely be overturned, Americans only have the rights enumerated in the Constitution and the country should strive to follow the intent of the Founding Fathers as expressed in their exact wording. But some of Scalia’s actions betray a tendency to adhere to these principles when it suits him, and ignore them when adherence would be inconvenient.
Scalia refused to recuse himself from the case of Cheney v. United States District Court, a case regarding former Vice President Dick Cheney’s right to maintain the secrecy of the membership of an advisory task force on energy policy. Though asked to recuse since he had been on a hunting trip with Cheney, Scalia refused, explaining that there is a distinction between official and personal capacities. Since it was an official matter, his logic would not be compromised regardless of any personal relationship he may have had. Yet he coincidentally supported Cheney’s position in the case, introducing a whole new meaning to “friends with benefits.”
Scalia was also asked to recuse himself from Hamdan v. Rumsfeld, a case about the right to trials of the detainees of Guantanamo Bay. Scalia’s participation in the case was questioned due to potential emotional bias.
“I had a son (Matthew Scalia) on that battlefield,” Scalia commented. “They were shooting at my son, and I’m not about to give this man who was captured in a war a full jury trial.”
Once again, Scalia refused to recuse himself. So much for the liberal intent of the framers of the Sixth Amendment to the Constitution.
Scalia said he believes the problem with the evolutionary approach to constitutional interpretation is a lack of answers. If analysis of the text can change with society, he warned, then the meaning of the document can be translated to mean whatever people choose on any given day.
The fact is that the meaning of the Constitution will undoubtedly change with time. But change isn’t necessarily the dark, malicious force Scalia makes it out to be. Rather, adapting our understanding of the Constitution has produced many positive and necessary changes. Change granted women and black people a right to vote; change drove our forefathers to pursue a “home of the free”; change allows people across the nation to have hope for a better future.
Not always being given the answer shouldn’t dissuade anyone from a way of interpretation — God forbid American citizens should have to think for themselves. Though our forefathers guide us, it is our responsibility to ask the questions, interpret the text and find our own answers.
Like the interpretations of any literature, whether it be Shakespeare, Faulkner or the Bible, it is difficult to truly understand what the authors’ intentions were when the ink originally hit the parchment. “Cruel and unusual punishment” is vague and will likely never be translated in the exact context the writers desired, but as a country we can try our best to interpret the words in a way that is relevant and accurate.
We shouldn’t simply look to the past for answers, but rather seek guidance in the possibilities that await us and allow change to light the way.
— Rachel Leavitt is a sophomore majoring in English. She can be reached at letters@wildcat.arizona.edu
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