Justice
How to Explain Originalism to Your Grandchild
American progressives, in collusion with the Democratic Party, will spend the next few months trying to torpedo the nomination of Appeals Court Justice Neil Gorsuch to the United States Supreme Court.
I’ve been listening to the good guys try to explain why we need originalist or constitutionalist judges. I haven’t been satisfied with their explanations.
So here’s my attempt to help.
This is how to explain originalism to your grandchild.
When most conservative leaders or reporters discuss the difference between activist/progressive judges and constitutional/originalist justices, they usually say the following:
“We need originalist justices who go by the original intent of our Founding Fathers when they wrote the Constitution. Those who refuse to interpret by original intent believe that the Constitution is a living, breathing document that should change with the times. We don’t want that. We want judges to look for the original intention of the authors.”
Hence, the idea of originalism.
That answer is good–and true. But I’ve never found it satisfying. It almost sounds like we want to go by what a bunch of old white guys thought two hundred years ago instead of applying their words to our time.
The Founding Fathers, in this explanation, look ancient and narrow and the activists come across as modern and relevant. How could the intentions of two centuries ago be helpful in the modern world?
So, here’s a clearer way of looking at it. You might want to try out these comparisons with your grandchildren or others that need some enlightenment.
Here’s my take on what’s crucial to know in the originalist versus activist debate.
Words versus Feelings
Tell your grandchild that America’s laws are not about fashions and fads. They have nothing to do with hairstyles, fun and games, and all the trivial parts of life. A nation’s laws relate to the really important things that never change–like the meaning of words such as life, freedom, justice, property and all the big stuff of life. These God-given rights are permanent–and shouldn’t be altered just because we feel so.
For example, it’s always wrong to murder an innocent human being. It doesn’t matter whether I’m mad at that person, or they’ve done something awful, or whether I’m just out of control. My anger or feelings never justify me killing them. Never. A right to life is a fixity–a truth. No matter what I feel about it, that doesn’t change what it is and how it should be respected.
Tell your grandkid you can”t change the meaning of important stuff. Murder is always wrong.
Laws versus Rulers
A second angle is the huge difference between laws and people–especially rulers of nations.
For thousands of years–and much of real history isn’t taught any more–most people lived under strong kings or powerful rulers who told them what to do. They possessed no rights, and simply obeyed everything the ruler decreed. The ruler was king. Kings got what they wanted.
Starting with the Magna Carta, and then English Common Law, the biblical worldview triumphed over the power of kings by stating that the king is not “king”–the law is king.
Lex Rex (the Law is King) changed the world by declaring that murder is murder even if the king says it is a way of getting rid of misfits in his kingdom. People have natural rights, and their rights–enshrined in law–are more important than the king’s desires.
An originalist believes in laws more than kings. Tell your grandchild that Henry VIII killed a number of his wives because he didn’t like them. That was wrong.
Good laws are better than bad kings. Good laws don’t change.
Absolutes versus Relativism
These big words may be hard to explain, but let’s try. We live in a time when many progressive folks are trying to convince us that there are no moral absolutes in life. They say that nothing is absolutely true. Ironically, they also tell us they’re absolutely sure about this fact!
Yet, one of the most obvious truths in life is that some things ARE absolute and some things are relative. Those absolutes include the following:
- Murdering innocents is absolutely wrong–people have a right to live.
- Forced slavery is absolutely wrong. There is a right to freedom.
- If an astronaut takes off his oxygen mask in space, he will absolutely die. There are many absolute rules about life and death.
There are also many things in this world that are relative (a matter of opinion or choice):
- Which country is the best in the world.
- Which ice cream tastes the most delicious (I vote pistachio!).
- What kinds of clothes people wear, the best hair styles, and even how families show love and respect for each other.
Those who want activist judges don’t believe that anything is absolute. They say that everything is a matter of personal preference or choice. They want all of our laws to be relative too–we can interpret them any way we want based on the ideas or fads of the time.
Give your grandchild this analogy. If you go up to the top of a high building and someone tells you to jump off, and that you won’t be hurt by jumping–what should you do? Gravity on earth is absolute. It is not relative. It doesn’t matter if your friend believes you can fly and won’t become a grease spot on the pavement. The truth is, if you don’t believe in gravity, you are absolutely wrong.
An originalist understands that there are both moral and physical absolutes in life. They enshrine those good ideas in unchangeable laws.
The activist will tell you to jump if you want. Don’t believe them.
Promises versus Lies
A good way to think about our laws is that they are contracts or promises we make that are important to keep. It is crucial to honor a contract or keep a promise because other people are depending on it. It’s very important to keep our word.
For example, we have many laws (agreements or promises) related to driving a car. First, you have to “promise” to get a license so we know you’ve been trained to drive. You also need to “promise” to stop at stop signs and red lights because if you don’t, you might run into and hurt someone else. You also “promise” to drive the speed limit etc.
The promise or commitment exists so that everyone remains protected and free. Without everyone following the rules, there would be traffic chaos everywhere. On the road, it is important to never “lie to ourselves” and not keep our promise to be a good driver. If we “lie” that the light up ahead is not really “red” but it’s “green”–and we drive through the light–then someone can get killed.
The same is true about good laws. They are our word, our promise, our security, and our safety. Originalist justices don’t let people lie about laws. Red is red and green is green.
Words are promises. If someone promised you something, would you be happy if they lied to you and changed their mind?
That’s what progressive judges do. They lie, change words, and break promises.
It’s always right to keep your good word.
God over Humans
Probably the most important thing to teach your grandchildren is that God’s ways are always right and good, and that people are the ones that can really mess things up.
Originalist justices are committed to following God’s view of law, promises, commitments and promises. God wants people to keep their commitments, honor their words, and never rationalize their actions to do what they want.
On the other hand, progressive judges want to change laws, break or alter promises and commitments to go along with their ideas and agendas. They are not committed to doing what’s best or right for people. They think they are smarter than God.
They are not. Always trust God’s commands over human ideas.
So, in explaining originalism to your grandkids, you don’t have to settle for just “keeping the intent” of the founders. Tell them that murder is always wrong, good laws are better than kings, it’s critical to keep your word (promises), and God is much smarter than we are.
In other words: Don’t jump off that building (Splat!).
And pray that our leaders love us enough to appoint originalist judges.
Antonin Scalia: Supreme Human Being
I don’t know if the passing of Supreme Court Justice Antonin Scalia set off a flourish of revelation. Or if the primary battle in South Carolina is spawning new heights of political rhetoric.
But the week following Scalia’s death produced some great social commentary. I want to share some of those pieces with you.
But I especially want to pay tribute to the memory of Antonin Gregory “Nino” Scalia.
He was truly a supreme human being.
Before I get to the impactful life of Justice Scalia, I want to commend four articles that brimmed with insight this week. Please read them at your leisure:
- Global: “How Does the US Economy Compare with the World” by Nicholas Vardy.
- Politics: “Sanders and Trump: Magic Sells” by Charles Krauthammer.
- Economics: “The Lure of Socialism” by Thomas Sowell.
- Justice: “Why Antonin Scalia was a Jurist of Colossal Consequence” by George Will.
Now to Antonin Scalia.
Supreme Personality and Character
I have a few friends who knew Justice Scalia and greatly enjoyed his warmth, wit, musical gift (he loved to play the piano and lead others in singing), gregarious nature, delight in Italian food (he had lunch at the same DC Italian restaurant for forty years) and jovial personality.
Though polar opposites in legal worldview, Justice Scalia and Justice Ruth Bader Ginsburg were “buddies” who enjoyed opera and taking vacations together with their spouses. Scalia also reached out to Justice Elena Kagan–a staunch secular progressive–and took her to shooting ranges for target practice (not at her!).
The rest of the DC political class should pay attention to such humility and comradery.
Supreme Faith and Family
Antonin Scalia was a devoted Catholic who loved His Lord and practiced his faith. He was married to his wife Maureen for fifty-five years, fathered nine children, and had over thirty grandchildren and great-grandchildren–all of whom adored him.
His son Jim was interviewed on television this week and shared how his dad deeply loved his family–and that what you saw in public of Antonin Scalia you also saw in private. His family legacy will be great.
Supreme Legal Brilliance
Justice Scalia taught us that the law matters. That the law is the written word–period. And that the written word takes its meaning from how history understands it–not what we wish it to mean.
He tirelessly taught that a “living” constitution (bad idea) is like an open marriage: that weakening the contract destroys the relationship it was meant to protect.
Thus, he championed constitutional originalism. Here are ten samples of his eloquence:
1. “What is a moderate interpretation of the text? Halfway between what it really means and what you’d like it to mean?” (Remarks at Woodrow Wilson International Center for Scholars, Washington, D.C., 2005.)
2. “There is nothing new in the realization that the Constitution sometimes insulates the criminality of a few in order to protect the privacy of us all.” (Majority opinion, Arizona v. Hicks, 1987.)
3. “God assumed from the beginning that the wise of the world would view Christians as fools … and he has not been disappointed. … If I have brought any message today, it is this: Have the courage to have your wisdom regarded as stupidity. Be fools for Christ. And have the courage to suffer the contempt of the sophisticated world.” (Speech at Living the Catholic Faith conference, 2012.)
4. “If you think aficionados of a living Constitution want to bring you flexibility, think again. You think the death penalty is a good idea? Persuade your fellow citizens to adopt it. You want a right to abortion? Persuade your fellow citizens and enact it. That’s flexibility.” (Speech, Wilson Center, 2005.)
5. “A law can be both economic folly and constitutional.” (Concurring opinion, CTS Corp. v. Dynamics Corp of America, 1987.)
6. “If we’re picking people to draw out of their own conscience and experience a ‘new’ Constitution, we should not look principally for good lawyers. We should look to people who agree with us. When we are in that mode, you realize we have rendered the Constitution useless.” (Speech, Wilson Center, 2005.)
7. “It is one of the unhappy incidents of the federal system that a self-righteous Supreme Court, acting on its members’ personal view of what would make a ‘more perfect Union’ (a criterion only slightly more restrictive than a ‘more perfect world’) can impose its own favored social and economic dispositions nationwide.” (Dissent, United States v. Virginia, 1996.)
8. “Bear in mind that brains and learning, like muscle and physical skill, are articles of commerce. They are bought and sold. You can hire them by the year or by the hour. The only thing in the world not for sale is character.” (Commencement address, College of William and Mary, 1996.)
9. “We should start calling this law SCOTUS Care … [T]his Court’s two decisions on the Act will surely be remembered through the years … And the cases will publish forever the discouraging truth that the Supreme Court of the United States favors some laws over others, and is prepared to do whatever it takes to uphold and assist its favorites.”
10. “Every tin horn dictator in the world today, every president for life, has a Bill of Rights,” said Scalia, author of the 2012 book “Reading Law: The Interpretation of Legal Texts.” “That’s not what makes us free; if it did, you would rather live in Zimbabwe. But you wouldn’t want to live in most countries in the world that have a Bill of Rights. What has made us free is our Constitution. Think of the word ‘constitution;’ it means structure.”
Samuel Alito: “He was a towering figure who will be remembered as one of the most important figures in the history of the Supreme Court and a scholar who deeply influenced our legal culture. His intellect, learning, wit, and memorable writing will be sorely missed.”
Stephen G. Breyer: “Nino Scalia was a legal titan. He used his great energy, fine mind, and stylistic genius to further the rule of law as he saw it. He was a man of integrity and wit. … He loved his family. He also loved ideas, music, and the out of doors. He shared with us, his colleagues, his enthusiasms, his humor, his mental agility, his seriousness of purpose.”
Ruth Bader Ginsburg: “From our years together at the D.C. Circuit, we were best buddies. We disagreed now and then, but when I wrote for the [Supreme] Court and received a Scalia dissent, the opinion ultimately released was notably better than my initial circulation. Justice Scalia nailed all the weak spots—the ‘applesauce’ and ‘argle bargle’—and gave me just what I needed to strengthen the majority opinion. … It was my great good fortune to have known him as working colleague and treasured friend.”
Elena Kagan: “His views on interpreting texts have changed the way all of us think and talk about the law. I admired Nino for his brilliance and erudition, his dedication and energy, and his peerless writing. And I treasured Nino’s friendship: I will always remember, and greatly miss, his warmth, charm, and generosity.”
Anthony Kennedy: “His insistence on demanding standards shaped the work of the court in its private discussions, its oral arguments, and its written opinions. … [The] foundations of Justice Scalia’s jurisprudence, the driving force in all his work, and his powerful personality were shaped by an unyielding commitment to the Constitution of the United States and to the highest ethical and moral standards.”
John G. Roberts Jr., chief justice: “He was an extraordinary individual and jurist, admired and treasured by his colleagues. His passing is a great loss to the court and the country he so loyally served.”
Sonia Sotomayor: “My colleague Nino Scalia was devoted to his family, friends, our court, and our country. He left an indelible mark on our history. I will miss him and the dimming of his special light is a great loss for me.”
Clarence Thomas: “Justice Scalia was a good man; a wonderful husband who loved his wife and his family; a man of strong faith; a towering intellect; a legal giant; and a dear, dear friend. In every case, he gave it his all to get the broad principles and the small details right. … It is hard to imagine the court without my friend. I will miss him beyond all measure.”
Supreme Legacy
Looking at the three branches of the American government over the past fifty years, the greatest president of my lifetime is Ronald Reagan.
The greatest Supreme Court Justice is Antonin Scalia.
It’s harder to choose the greatest congressional leader because few in recent history have made a huge mark. The closest, in my opinion, is Ted Cruz whom Dr. James Dobson strongly endorsed this week.
If Ted Cruz isn’t elected president of the United States in 2016, then maybe the next president can nominate him or someone like him to take Scalia’s place.
That would make Nino (and all Constitution-loving Americans) supremely happy.
A New Martin Luther King Among Us?
I sometimes write commemmorative pieces on the Rev. Dr. Martin Luther King Jr. and his great impact on civil rights in America. MLK is one of my heroes. I usually do the piece in January when we celebrate his birthday with a national holiday.
This year I’m upping the article two months because of the current racial tensions in the US and a strong belief that another individual has risen in the spirit of MLK. Read More