R.I.P. Justice Antonin Scalia and the United States Constitution

     The death of United States Supreme Court Justice Antonin Scalia follows on the heels of the death of the United States Constitution last year.  Apparently Justice Scalia was recently suffering from some health problems unknown to the public.  On the other hand, the U.S. Constitution has been suffering a lingering decline in health that was very public and has continued for decades. It was hoped that Justice Scalia would be able to continue in his role for another 10-20 years.  At the time of birth of the United States Constitution it was hoped that it's life expectancy would be for many hundreds of years.

     Antonin Scalia was known for his belief as a originalist in interpreting the Constitution.   He was joined by Clarence Thomas.  The other two members of the conservative bloc, John Roberts and Samuel Alito, are somewhat more flexible in their interpretation. The members of the liberal bloc, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elana Kagan believe that the Constitution is a "fluid" or "living" document that should be interpreted with the public policy objectives to be met (that more than coincidentally happen to be the objectives of the liberal agenda). The remaining member of the court, Anthony Kennedy, vacillates between the two blocs and is difficult to predict.

     The United States Constitution has been suffering from a terminal case of cancer that was initially diagnosed many years ago.  There are a number of provisions of the Constitution that have been "liberally" construed to mean much more than the plain language of the document.  It is much too involved to trace the entire history in this blog page.  I will limit the analysis to the final attack that sent the Constitution into cardiac arrest.

     On June 26, 2015, The United States Supreme Court ruled that the states did not have the right to limit the institution of marriage to one man and one woman and were required to give their official stamp of approval to same sex marriages in Obergefell v. Hodges.  The basis for this decision according to the majority in a 5-4 decision is the Due Process Clause of the Fourteenth Amendment.  

     A number of years ago, a majority of the Supreme Court bastardized the Due Process Clause to include a substantive component.  The relevant portion of the Fourteenth Amendment states: "[nor] shall any State deprive any person of life, liberty, or property, without due process of law". The clear meaning of this provision is procedural in nature.  It mandates that rights cannot be deprived without due process.  It doesn't create additional rights to those that are otherwise enumerated.   Substantive law is considered the component that defines rights and responsibilities.  Procedural law is the component that sets forth the rules in how a case is process through the court system.  Substantive due process is like saying stationary movement.  They are separate concepts and combining them is a legal fiction.

     As the dissenting justices point out this should not be an opinion as to whether same sex marriage is a good or bad public policy.  That is not the role of the Supreme Court. Rather it is a matter of principle in law whether the states have the right to make that determination regardless of the merits of the particular subject. The dissenting opinions are perhaps the strongest language that I have ever seen in Supreme Court opinions. Among other points, the majority is labeled as acting as a super legislative body, establishing public policy.  This is an invasion on the separation of powers doctrine.  

     The judicial branch is in a unique position of making the final decision on disputes between the three branches.  The concept of judicial restraint is the discipline that should be exercised not to abuse that position.  When justices read something into the Constitution that isn't there, they are abusing that principle.

     The political left doesn't have respect for the Constitution.  President Obama has been quoted as saying that the problem with the Constitution is that it is too limiting.  Yes, that is exactly what the Constitution is intended to achieve, to limit the power of the Federal Government and reserve the remaining rights to the states and individuals as stated in the Tenth Amendment.  Justice Ruth Bader Ginsburg, in a discussion with Egyptians seeking a new constitution suggested that they should not use the United States Constitution as a model and rather look to the South African constitution. 

     What the liberal left can't achieve through the front door, they change course and use the back door.  If legislatures don't approve the policy change of same sex marriage, then use the court system to mandate the change on constitutional grounds.  All they have to do is have sufficient majorities in place on the court that are willing to use convoluted legal interpretations to declare that the U.S. Constitution created a liberty right to same sex marriages that must be recognized by all of the states. The bottom line is that they say to the states, that you have to do it because we say so.

     Self proclaimed legal scholars, even if well intended, think too hard in trying to read something into the Constitution that isn't there.  The Due Process Clause is very simple.  It doesn't proclaim new substantive rights, it merely says that the government can't deprive a person of  life, liberty or property without due process of law.  That simply means that the government cannot impose the death penalty, incarcerate someone depriving them of their liberty, or take their property rights without an appropriate legal procedure that protects their rights. It doesn't create new liberty or freedoms that are not already set forth in other provisions of the Constitutions.

     I have noticed that there is not a flood of legal scholars that have opined that the Obergefell decision is an example of brilliant legal interpretation.  Even they recognize that they have to hold their noses to avoid the odor emanating from this distortion of the Constitution.

     The framers of the Constitution recognized that they could not envision all of the issues that might arise in a newly developing country.  That is why there is a specific way to amend the Constitution.  It was thought that it should require support of more than a majority of the population in order to change the operating framework.  It is not easy to amend the Constitution, nor should it be.  With a left-wing view of disrespect of the Constitution there is no need to amend the Constitution when you can merely "interpret" anything that you desire into the provisions of the document.

     Fortunately, the Constitution is in a time warp.  While it is currently in cardiac arrest, it is possible that it can be resuscitated.  It will require the appointment of judicial conservatives that will adhere to the concept of judicial restraint and not try to abuse their power by "reading" something into the Constitution that isn't there.  It isn't a matter of the ends justify the means.  The Constitution is a powerful document that was written by a group of citizens that were trying to form a framework that would last many generations. If followed with it's original intent and meanings, it can withstand the changes of time.