Scalia and Santorum: Static Simpletons in a Progressive Population

“I know what you’re thinking.”  This may be a great pickup line at a tavern, but it is a lousy way to interpret the Constitution of the United States of America.

Oh, but don’t tell that to United States Supreme Court Justices Antonin Scalia or Clarence Thomas.  They are what you call “originalists.”  They believe that they know and understand the Founding Fathers’ original intent of the laws that govern this country vis-a-vis the specific language used in the U.S. Constitution.  I call them “soothsayers” or “oracles,” but I have no faith that they can tell me what someone actually meant to say over two-hundred years ago.

One of the most often cited reasons that the colonists left England in the seventeenth century was that they desired the freedom to practice whatever religion they wanted and not be persecuted by King George III and the Church of England.  Unfortunately, the treatment that many received in the new colony was much the same as they had suffered from in England.  In particular, Roman Catholics and Jews were often subjected to legal and personal persecution.  In 1776, over 150 years after the first English settlement was established, nine of the thirteen colonies still required public funding for one or more Protestant denominations.  In many of the colonies, Jews and Catholics could not hold public office, vote or own any land.  Clearly, the Founding Fathers did not really care about religious freedom, at least until the First Amendment was passed in 1791.  History is rife with politicians trying the wrong things first before eventually doing the right thing.

The Fourth Article of the U.S. Constitution provides for the rights of citizens living in one state to be allocated the same rights in each subsequent state he visits.  This is all well and good on the surface, but you need to remember that black people and women did not have full “privileges” that the Founding Fathers enjoyed.  Those minorities never had the rights to vote anyway, so the question of whether or not they should ever have that right to vote was never addressed by the Founding Fathers.  It is reasonable to conclude that the intention of the Founding Fathers was to never allow women or black people to vote.  Now, I know what you’re thinking.  You’re thinking, ‘Strenue, there were two kinds of black people in colonial days: slaves and “free blacks.”‘  “Free” blacks in the colonies were better off than slaves, but not by much.  They could buy and sell real estate and personal property, but those and other “rights” were often hamstrung with restrictions.  For example, Boston forbade “free blacks” to own pigs, while Connecticut managed to bar them from owning land in any town unless that individual had the town government’s permission.  In general, women were often treated as a second-class citizens.  Married women had no authority to sign contracts.  Any real estate or personal possessions she owned before she got married automatically became her husband’s to manage and own.  No colony or state allowed women to hold political office or serve on a jury.  Single and unmarried women could enjoy the right to be taxed, but they did not have the right to vote on who would represent them in government.

Speaking of women and their rights, I hope you pick up a copy of Rick Santorum’s book titled It Takes a Family.  In reading certain chapters, you’d think that he was with the Founding Fathers when they drafted the U.S. Constitution.  In one particular passage of his book, Santorum wrote, “The radical feminists succeeded in undermining the traditional family and convincing women that professional accomplishments are the key to happiness.”  That could very well be the most chauvinistic tripe that I have read in the past thirty years.  Santorum is saying, “It’s okay, babe…you don’t need to work to make yourself look better or feel better about yourself.  Quit reading those college textbooks.  That’s a good girl.  Now, go back in to the kitchen, put on that apron and make me a chicken pot pie.”  We all need to make sure that Santorum never gets the chance to undo over a century of women’s rights and progress in the workplace.

Since Justice Scalia is an avowed “originalist,” is it also safe to conclude that he, like the Founding Fathers, also does not care about preserving the rights of minorities?  The question becomes even more alarming when you think about the other “originalist” on the U.S. Supreme Court, Justice Clarence Thomas.  Would he also examine history like Justice Scalia and find that the Founding Fathers did not specifically address voting rights for African-Americans or women and, ergo, he would not declare methods which restrict minority voting rights as unconstitutional?

The problem with Scalia and his ilk is not limited to the fact that they try to channel the thoughts and intentions of dead people.  Scalia also believes that the U.S. Constitution is a “static” document, insomuch as it does not need to be changed; it only needs to be interpreted.  Anti-originalists argue that the Founding Fathers knew that the original Constitution was not a perfect document.  Otherwise, why would there be amendments to the U.S. Constitution, specifically the Ninth Amendment which reads, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”  The Founding Fathers admitted that the U.S. Constitution as originally written was not a perfect document, so they allowed for it to be amended as needed, as long as those amendments do not take away the rights and privileges already talked about in earlier sections of the document.  In that regard, the Founding Fathers were the most forward thinkers of their era.  They knew time would and must move forward and they wanted a Constitution that would be able to adapt in to a world they could not begin to imagine.

Neither Scalia nor Thomas nor Santorum wants to live in this world.  They want to live in an era where African-Americans and women are not people but chattel to be traded on a whim.