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Time to Come out of the Closet: Thoughts on the Supreme Court

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allen finkelstein
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The Supreme Court

With the unexpected passing of Supreme Court Justice Antonin Scalia, both the judicial and the political landscapes have been thrust into turmoil the likes of which have not been seen since the Civil War. A brilliant, but radical jurist, not only did Mr. Scalia change the face of the Supreme Court, he changed and revised the Constitution. In his view, some of the greatest compromises worked out by our founding fathers, such as the Second Amendment, could be relegated to the trash heap. There scavengers of both political parties could pick at the remains and interpolate their own words into their preferred sections of the amendment. The Republicans, "to a man," as the saying goes, are determined to find a clone for the deceased Scalia. To that end, they are determined to put off choosing a successor, no matter how long it takes, until they find that clone and a suitable Republican to replace President Obama. Thus, Mitch McConnell and his colleagues' real fear is that they may have to obstruct the appointment of a new Supreme Court Justice indefinitely.

As for Antonin Scalia's passing, I have heard people say that he was a "textualist," an "originalist," a strict interpreter of the Constitution, and that he tried to interpret the document the way its authors would have at the time. These are nothing but blatantly ideological excuses for so many of the judge's opinions, often arrogant lectures on what he felt the authors of the Constitution "should" have said but did not. Fortunately for our country, our founding fathers did not share Mr. Scalia's authoritarian ideology. In fact, they dealt with their disagreements by something called "compromise." Now I am not an attorney, but neither were the vast majority of the fathers of the Constitution. While I greatly respect Mr. Scalia's intellect, wit, elan vitale, as well as his familiarity with American jurisprudence, I have little appreciation for his disrespect for the Constitution, a document which he seemed to consider subservient to his too often ignorant interpretation of the Bible, to a lack of conscience, and to his perversion of the English language.

Until Mr. Scalia arrived on the scene, the Second Amendment used to say "A well regulated militia, being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed," thereby linking the possession of guns to state regulations because of the need for state militias, but also preventing the federal government from arbitrarily confiscating weapons from "well regulated" gun owners. The amendment protects "the right" to bear arms, but not the arms themselves and not all arms. The august judge must have misplaced the "original text" of the Second Amendment or perhaps he discovered a "new" text that the rest of us had never seen, one that absolutely obliterates any military or regulatory connection to the amendment. The Second Amendment already represents a huge compromise by the founding fathers in the struggle between federal and state government. How, exactly, did Mr. Scalia and his accomplices arbitrarily usurp from the states and the voters the power to "amend" the Constitution? Did they want us to believe that our founding fathers, in a fit of amnesia, had simply forgotten to take out those parts of the amendment tying it to the "militia" and to "regulation?" Could it be that like so many other law professors, Scalia may have felt that Constitutional law is to be the exercise of sleight of hand, the personal province of sophist jurists and not common people with an understanding of the English language? I often think that we might be better off with nine English professors on the Supreme Court instead of nine judges who are clearly not accountable for their often purposely politically tainted interpretation of our language.

When law professors arrogantly proclaim that the Constitution does not protect the right to vote, shocking their students with this "revelation," they forget about the Citizens United and McCutcheon decisions, nor do they consider the 14th, 15th, 19th, and 26th amendments as part of the Constitution. The Scalia led decisions, protecting huge political donations under the First Amendment as "freedom of expression," must also protect voting as "freedom of expression." It's called "elementary logic," unless you believe, as Mr. Scalia did, that voting is merely "a meaningless act of pushing a button!" Sophist law professors will point out that nowhere in their "Constitution" does it literally say that voting is protected and I will answer that I actually was an English teacher at one time and that I'll be damned if I can find anything, even in their Constitution, that literally says that political contributions are protected either! Are we really reading the same document, fellows? Meanwhile, if "freedom of expression" is the criterion, then "as surely as night follows day," political donations and voting must both be protected by the First Amendment. The political ramifications of this are that it is patently illegal to purposely make it more difficult to vote!

Somehow, I've always avoided the silly idea that the Constitution is a growing organism sprouting new ideas as well as the equally foolish notion that its faults are somehow interred with the bones of its creators. Instead, I believe that for the most part, there are contradictions that represent disagreements between the authors and their ideas, but there are also self correcting mechanisms in place, thus the mechanism for amendment for instance. If people are equal, then sooner or later slaves and Native Americans were destined to become full citizens. All that was lacking was the will of the people to enforce the Constitution! That will is lacking in both parties, extremists in each party "wanting what they want" and at the same time ignoring what their constituents "need."

Last but not least, since his bullying legal nemesis is gone, President Obama will no longer have to cower in some White House closet every time Mr. Scalia utters one of his mystifying overzealous decisions. In fact, he might even find the courage to finally stand up to the Republican Congress and permit the Justice Department and / or the heretofore worthless Bar Association to go after the perverted "Justice" Clarence Thomas. His blatant violations of the "Honest Service Statute," his refusal to recuse himself from cases in which he and his lobbyist wife were paid hundreds of thousands of dollars for his decisions, are all difficult for anyone except for the likes of an Eric Holder to ignore. In fact, this may be the best way to bring back the Citizens United controversy into true perspective, by examining the impossibility of separating it from the Honest Service Statute and the unavoidable quid pro quo involved as political donations become larger and more grotesque. What's more, I for one would love to see the expression on poor Mitch McConnell and the Koch Brothers' faces when they realize that there might be only three blatantly revisionist Supreme Court Justices left to partake in their secret meetings and to accept their generous gratuities for services rendered.

Allen Finkelstein, D.O. 2/14/16 (The article was held by the author until a respectable period after Mr. Scalia's interment.)

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Dr. Allen Finkelstein, writing since 2006 under the penname “O’finky,” was born in New York, where he attended the Hebrew Academy of Nassau County as a boy. He continued his religious training in South Florida until his family, (more...)

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