Wednesday, February 24, 2016

Originalist approach of Justice Antonin Scalia


Judicial intent

Although Justice Antonin Scalia was widely considered an individual of great intellect, character and charm, his originalist approach was a point of contention. The concept of originalism is an approach to interpreting the U.S. Constitution based on the perceived original intent of its framers.
But English words and terms are often open to various interpretations — including constitutional terms like “general welfare,” “natural born citizen,” “take care” and “cruel and unusual punishments.” Even the framers had their differences about the meaning of certain terms.

The “equal protection” clause of the 14th Amendment, in the beginning, was not interpreted as providing equal rights to all citizens: Blacks could not vote until the 15th Amendment; women could not vote until the 19th Amendment; segregation was legal until the Brown vs. the Board and Education decision, and the 1964 Civil Rights law; and same-sex marriage was not legal in all states until 2015. Strangely, Scalia has stated that he would have sided with the majority in the Brown decision, and that it was consistent with a historical reinterpretation of the equal protection clause — not exactly an originalist view. Also, in a 2000 decision (FDA vs. Brown & Williamson Tobacco Corp), Justice Scalia seemed to again betray his originalism with the statement, “the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.”
If strict originalism is not possible or appropriate, what is the proper philosophy for interpreting the Constitution? Most justices seem to use an evolutionary approach, using the Constitution and past decisions as a guide, with context provided by a peripheral view of our changing society.
I certainly hope the president and the Senate can agree on a justice who will preserve and support the best in our law, and assure justice and fairness for all.
By; Tom Hilburn

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