Antonin Scalia

Fine Day to Read the US Constitution

There is no better day than Independence Day to find a copy of the US Constitution, read it and join the decades old debates about what it says, what it means and how we should interpret it in our own time.

There is no better day than Independence Day to find a copy of the US Constitution, read it and join the decades old debates about what it says, what it means and how we should interpret it in our own time.

To celebrate the nation’s birthday, The New York Times published the US Constitution and its 27 amendments (in print form only) with annotated comments from prominent Americans and a preface by historian Garry Wills.
 
Even though the Constitution is the bulwark of American rights and liberties, many Americans are unfamiliar with the document, its origins and the debates over its meaning that have spiraled through our national history.
 
Washington Senator Patty Murray points to the Seventeenth Amendment that requires the direct election of US senators. Previously, senators were elected by state legislatures. Murray, who launched her political career by resisted state legislative efforts to cut preschool funding, said, “If these words hadn’t become law, I would almost certainly not be in the US Senate today.
 
Utah Senator Mike Lee, who just published his latest book titled Written Out of History: The Forgotten Founders Who Fought Big Government, underscores the importance of the very first clause in Article I of the Constitution that says “All legislative powers granted shall be vested in a Congress.” Lee observed, “Sadly, in the 20th Century, members of Congress started to give away lawmaking authority to the executive branch because they did not want to be held accountable to the people for unpopular laws.”
 
Vermont Senator and unsuccessful presidential candidate Bernie Sanders wrote, “At a time when the President is actively working to undermine the foundations of American democracy and openly admires the world’s strongmen, autocrats and dictators, we must, regardless of party and say, ‘This is not what our constitutional democracy stands for.’”
 
Times Supreme Court reporter Adam Liptak offers perspectives about the Constitution and capital punishment. He says the Fifth Amendment doesn’t help death penalty opponents by calling for grand juries involving “a capital or otherwise infamous crime.” However, the Eighth Amendment bans “cruel and unusual punishment.” Liptak quotes a dissent by Supreme Court Justice Stephen G. Breyer in 2015 who said flaws in the modern administration of the death penalty make it unreliable, arbitrary and warped by racism, which he equated with cruel. He also cited the late Justice Antonin Scalia who accused Breyer of spouting gobbledygook. “Capital punishment presents moral questions that philosophers, theologians and statesmen have grappled with millennia. The framers of the Constitution disagreed bitterly on the matter. For that reason, they handled it the same way they handled other controversial issues. They left it to the People to decide.”
 
Scalia’s observation about the death penalty and founding father disagreements is an interesting segue to the contemporary debate over originalism – – the view that the Constitution should be interpreted in the context of the time and mindset of the men who wrote it.
 
In the preface, Wills questions the wisdom and utility of an originalist interpretation of the Constitution. “Finding original intent,” Wills wrote, “is more complicated than just looking up words in dictionaries of the 18th Century. It means re-entry into a lost world.”
 
Take the Second Amendment, for example, which has generated an irreconcilable debate over gun rights. Wills says James Madison, who played a central role in drafting the Constitution and the critical role in adopting the first 10 amendments to the document, wrote the Second Amendment to pacify southerners, especially slave owners who wanted to maintain armed state militias to suppress salves and quell a slave insurrection. “The original intent consideration of the Second Amendment,” Wills said, “shows just how far the poison of slavery pervaded the Constitution” and has little to do with the modern-day debate over owning assault rifles. Ironically, Madison didn’t feel it was necessary to protect an individual’s right to own a gun because almost everyone in his time owned one.
 
Lee, who is a leader in the congressional Freedom Caucus, wrote an earlier book titled Our Lost Constitution: The Willful Subversion of America’s Founding Document. In both his newest and first book, Lee makes the case for federalism, with power shared by the central and state governments. It was a debate waged vigorously at the constitutional convention and, as Scalia observed, was spelled out with characteristic constitutional ambivalence. Which explains why both political parties argue the issue inconsistently. Conservatives want less federal oversight on environmental rules and voting procedures, but favor a federal ban on abortion. Liberals see an important federal role in education and enforcing anti-discrimination, but favor allowing states and cities to pursue anti-carbon policies consistent with the Paris Climate Accords.
 
Most people don’t carry a copy of the Constitution in their pocket, so Independence Day is a great day to find and read a copy. You might be surprised at what’s in there. And remember that the men who wrote it didn’t always agree on what it said and what it meant. We don’t always need to agree either, which may be one the most underappreciated legacies of our Constitution.

The Curious and Contentious Constitutional Debate

It didn’t take long for the untimely death of Supreme Court Justice Antonin Scalia to erupt into a partisan battle and curious, contentious debate over the constitution.

It didn’t take long for the untimely death of Supreme Court Justice Antonin Scalia to erupt into a partisan battle and curious, contentious debate over the constitution.

The death of Supreme Court Justice Antonin Scalia has triggered a curious and contentious constitutional debate about his replacement.

Before Scalia’s corpse had turned cold, Senate Republicans served notice to President Obama not to bother sending up a nomination. They want to wait so the next President, who won’t be sworn in until early next year, can make the selection. Obama fired back that he plans to nominate a qualified replacement, and he expects the Senate to hold confirmation hearings and a vote. 

Senate Majority Leader Mitch McConnell cited an 80-year-old precedent for presidents to demur on filling Supreme Court vacancies in the final year of their term in office. A media fact checker disputed such a precedent, noting that President Reagan’s nominee, Anthony Kennedy, was confirmed in 1988, a presidential election year, on a unanimous vote by a Democratically controlled Senate. Kennedy was confirmed after the Senate rejected the earlier nomination of Robert Bork. 

Obama, who taught constitutional law at Columbia University earlier in his career, said it was his duty to nominate someone to fill a Supreme Court vacancy and the Senate’s duty to consider and vote on the nominee. He said there were no exceptions or limitations noted in the Constitution that apply to the final year of a presidential term.

The irony in this debate is that whoever succeeds Scalia will be the swing vote on a divided court that will decide whether Obama exceeded his constitutional authority in issuing executive orders.

The net effect of the tussle over whether there will be a vote or not has been to add another rancorous layer of politics to an already inflamed political environment. Some Obama haters went so far as to speculate on social media that Obama was responsible for murdering Scalia. Medical reports indicate Scalia died of a heart attack while at a remote hunting lodge in Texas.

No question that stakes are high on who will ultimately replace Scalia, who was a towering figure among conservatives who liked his legal reasoning and his colorful writing style. For now, the court has four liberal-leaning justices and four conservative-leaning justices with no ability to break a tie. In case of ties, the Supreme Court issues in effect no ruling, which would let stand lower court decisions, even if they conflict.

One legal scholar said Scalia’s untimely death will affect cases that already have been argued before the court. Scalia’s vote on those cases, the scholar said, can’t be counted if he isn’t still on the high court bench.

The issue of a lame-duck year Supreme Court nomination instantly became fodder on the presidential campaign trail, with all Republicans except Jeb Bush, urging no Senate vote and Democrats calling a GOP-imposed delay a constitutional affront.

There was an unexpected, though perhaps unsurprising, trickle down effect of the argument on races for the Senate this year. Twenty-four Republicans face re-election this year, and they may be uneasy pledging to stonewall a presidential Supreme Court nomination before finding out who is actually nominated. Supreme Court watchers have identified at least two potential nominees who were vetted in recent Senate confirmation hearings and voted in as federal judges on unanimous Senate votes.

One of the most curious pieces of speculation that bubbled up in the rough-and-tumble follow-up to Scalia’s death was that a delay in replacing the former Justice could paradoxically lead to Obama getting the nomination if a Democrat is elected President.

A Last Laugh at 2011

Since its beginnings at a Senate office Christmas party in 1981, The Capitol Steps has produced political satire that makes even lampooned politicians laugh at themselves. The group's 2011 wrap-up is no exception, drawing on a cornucopia of gaffes and ludicrous moments in an otherwise forgettable year.

 

The musical troupe satirizes Herman Cain's womanizing to the tune of Love Potion No. 9 and spoofs Congress (the opposite of progress) in a take-off of the Mary Poppins' favorite, Supercalifragilisticexpialidocious. A hilarious reprise of Bob Dole's character returns as the more experienced running mate for John McCain's late-arriving 2012 presidential bid.

Hardly anyone gets a pass in this hour-long special, not even the female U.S. Supreme Court justices, who, while waiting in line at the high court's one-hole women's restroom, coo about their secret lust for fellow justice and conservative hunk Antonin Scalia.

Not surprisingly, the living laugh track known as the GOP presidential candidates gets dominant play in the show, which includes a contest for funniest hopeful of the year. Former California Governor Arnold Schwarzenegger, a previous winner, introduces the contestants. Featured is a romp through revisionist history sung by Michele Bachman and Sarah Palin.

Of course, former Democratic Congressman Anthony Weiner makes an, ahem, appearance in what Capitol Steps' veteran Mark Eaton calls a built-in joke. President Barack Obama hangs out with the troupe because "I live with my mother-in-law."

No Capitol Steps show is complete without a version of Lirty Dies, the tongue-twisting, consonant-switching play on words that produces outlandish and belly-laughing results.

You can go to The Capitol Steps website and download the 2011 revue, which also contains a sneak-peak into the anticipated missteps of 2012. Don't try to navigate the distress that lies ahead without first cleansing your soul by listening the troupe's 2011 revue.

Even for the button-down believer, catching a Capitol Steps live show can be a Washington, D.C. highlight. For the cynics in the crowd, the show is a witty confirmation that the country is indeed seriously out of whack. 

A Last Laugh at 2011

Since its beginnings at a Senate office Christmas party in 1981, The Capitol Steps has produced political satire that even makes lampooned politicians laugh at themselves. The group's 2011 wrap-up is no exception, drawing on a cornucopia of gaffes and ludicrous moments in an otherwise forgettable year.

The musical troupe satirizes Herman Cain's womanizing to the tune of Love Potion No. 9 and spoofs Congress (the opposite of progress) in a take-off of the Mary Poppins' favorite, Supercalifragilisticexpialidocious. A hilarious reprise of Bob Dole's character returns as the more experienced running mate for John McCain's late-arriving 2012 presidential bid.

Hardly anyone gets a pass in this hour-long special, not even the female U.S. Supreme Court justices, who, while waiting in line at the high court's one-hole women's restroom, coo about their secret lust for fellow justice and conservative hunk Antonin Scalia.