Which Constitution does Congress want?
Published 10:04 am Friday, January 7, 2011
The new Republican leadership in the House of Representatives is determined to make the constitution a regular and frequent document in their proceedings.
Seems like a good idea, reminding those elected of the guarantees and protections that have afforded this great nation its opportunities to become a beacon for freedom around the world.
But can they even understand the Constitution enough to grasp its meanings and nuances?
According to Supreme Court Justice Scalia, the words do not mean what they say at all…that is without his added dimension of originalism.
Recently the magazine California Lawyer asked Justice Scalia if the 14th Amendment’s equal protection clause provides equal protection to women and homosexuals.
Scalia’s answer, in part, was, “Certainly the constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that’s what it meant. Nobody ever voted for that.”
Uh-huh.
So what exactly does the 14th Amendment have to say about equal protection you ask?
“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Now reading the language included in the amendment it seems perfectly clear that the words “any person” would mean, well, any person.
Therefore, reading the Constitution in Congress one could, without great difficulty, both read and understand that language to mean that men, women and even homosexuals are equally protected.
Not so says the Justice because the founders did not consider the words to protect those less favored classes at that time in history.
And according to Justice Scalia’s originalist reading of the Constitution, the words contained therein are subject, not to their clear meaning, but to his, or other originalist interpretation of that meaning based solely upon the intent of the meanings of the founders in the 1700s.
But that “intent” is not owned by the founders at all, but by those who claim the founders, long dead, still whisper today on how to read words written clearly to be different than recorded in the constitution.
How one can claim connection to these meanings appears to be most easily possible through connections to the spirit world, or to the wisdom of originalists.
Ordinary people, who might read the worlds of the 14th Amendment and see protection of equality of all citizens or people, would simply be wrong.
So Justice Scalia believes, and would have you believe, that the states are free to make laws that discriminate against women and homosexuals freely.
To return to the congress and the Constitution, given that according to Justice Scalia the words do not mean what they say, how would Congress know what the meaning of the document is…without a House originalist interpreting each word for the members, line by line?
But maybe the Founders were wiser men that those who claim only the meanings of the 1700’s inform our freedoms.
Maybe the founders couched their meanings by providing broad concepts within the Constitution that would be timeless and open to the changes of American life while still reflecting the values which purchased our freedoms.
Maybe, when the 14th amendment promises equal protection it really means just that.
Jim Crawford is a contributing columnist for The Tribune and a former educator at Ohio University Southern.