Super Bowl Update

Yesterday, Republicans took control  of the House of Representatives. Today, there will be a ceremonial reading of the U.S. Constitution;  which, evidently, has never been done before.

And speaking of the Constitution, news sources today report a mild-to-middling uproar over Justice Antonin Scalia's acceptance of Tea Party House Caucus founder Michele Bachmann's invitation to address House members on that very document.

From the LA Times:

The meeting "suggests an alliance between the conservative members of the court and the conservative members of Congress," said Jonathan Turley, a law professor at George Washington University, who said Scalia had shown "exceedingly poor judgment."

That same paper, however, carries an editorial saying, "Let Scalia speak." 


Antonin Scalia has sat on the Supreme Court for 24 years. Oyez.org remembers his ascension this way,

In 1986, President Reagan promoted William H. Rehnquist to the position of chief justice in the wake of the retirement of Warren Burger. To fill the vacancy created by Rehnquist's promotion, Reagan nominated Scalia to the Supreme Court. The political focus on Rehnquist's nomination drew all the attention away from Scalia. Thus, even though Scalia had a much more conservative record than Rehnquist, ironically Scalia's nomination passed unanimously and virtually uncriticized. Scalia took the oaths of office, becoming the youngest justice on the Court. His staunch conservatism and obvious intellect excited many conservative advocates who saw much promise in his confirmation.

Answers.com presents Justice Scalia's judicial philosophy concisely in this way:

Justice Antonin Scalia is a conservative. He is one of two justices on the court (the other being Clarence Thomas) who believe in the philosophy of constitutional originalism, that the Constitution should be interpreted solely in terms of the framers' original intent. 

Amidst all the flaps and fanfares associated with the swearing in of a new Congress, however, came a glancing reference in the Washington Post to Justice Scalia's insistence that the Constitution (the same document about which he's been invited to instruct House members) does not protect equal rights for women, let alone gay men and lesbians.

The article referred to an interview  Justice Scalia had given to California Lawyer. Here's the relevant question and answer.

In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don't think anybody would have thought that equal protection applied to sex discrimination, or certainly not to sexual orientation. So does that mean that we've gone off in error by applying the 14th Amendment to both?

Yes, yes. Sorry, to tell you that. ... But, you know, if indeed the current society has come to different views, that's fine. You do not need the Constitution to reflect the wishes of the current society. 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 that's what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don't need a constitution to keep things up-to-date. All you need is a legislature and a ballot box. You don't like the death penalty anymore, that's fine. You want a right to abortion? There's nothing in the Constitution about that. But that doesn't mean you cannot prohibit it. Persuade your fellow citizens it's a good idea and pass a law. That's what democracy is all about. It's not about nine superannuated judges who have been there too long, imposing these demands on society.

This all took me back to 1996, when Justice Scalia was the only justice to dissent in United States vs. Virginia, the case that allowed women to attend Virginia Military Institute. In his dissent, Scalia wrote:

...the tradition of having government funded military schools for men is as well rooted in the traditions of this country as the tradition of sending only men into military combat. The people may decide to change the one tradition, like the other, through democratic processes; but the assertion that either tradition has been unconstitutional through the centuries is not law, but politics smuggled into law.

Hmmmmm. So do I really not have Constitutionally guaranteed equal rights? Does Supreme Court Justice Antonin Scalia truly believe that  my employer can cite the Constitution as reason to pay me less than my male colleagues for equal work?

To me, it seems that he does. But, please, your thoughts . . .

Have you ever read the Articles of Confederation and Perpetual Union between the States?

I had not. Until last weekend that is, when, in residence at the Montpelier Constitutional Village, I set my alarm for 6 a.m. Saturday, so as to have time to do just that before my 9 a.m. class.

I found the Articles surprisingly readable and extremely thought-provoking. They begin with these three stipulations

I.

The Stile of this Confederacy shall be

"The United States of America".

II.

Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.

III.

The said States hereby severally enter into a firm league of friendship with each other, for their common defense, the security of their liberties, and their mutual and general welfare, binding themselves to assist each other, against all force offered to, or attacks made upon them, or any of them, on account of religion, sovereignty, trade, or any other pretense whatever.

So thirteen colonies signed the Articles, and there we were, a country: the United States of America. Sort of. In reality, that name denoted 13 separate principalities bound together by a need to resist a common enemy.

My fellow students and I were fascinated and quite amused that anyone expected much successful governance from a "firm league of friendship" among those free and independent sovereign states. But the Articles would not have flown, we learned, if they had not recognized the supremacy of state government. It seems that the country one identified with back then was the state in which one resided. I would have called myself a Virginian, not an American.

The purpose of the Articles of Confederation was to hold the colonies together in order to defeat the British army, to raise the necessary money to do that, to begin to figure out how states could more smoothly do business together, to ease out travel between the states, and to address expansion. And, our leader Eugene Hickok pointed out, the Articles got those jobs done.

That "firm league of friendship" held together effectively enough to win the Revolutionary War -- or, at least, long to keep soldiers in the field until Britain managed to lose the war.

But, Dr. Hickok also pointed out, the Articles outlined an alliance not a government. They did not give the central government enough power to glue those thirteen fractious principalities together for anything close to perpetuity. No "firm league of friendship" was going to triumph over the vicissitudes of human nature, which were as much in play in the founding of this country as they are today. We Americans have always had a difficult time with the concept of "the greater good," when it doesn't coincide with our individual good. Plus, times change. A country at war is often easier to hold together than a country at peace. There was an attempt to amend the Articles, but in the end they were scrapped as outmoded. Times change; issues change. Documents don't change -- at least not as fast as the times.

Americans appear to have been as politically fractious then as they are now. The writing and ratification of the Constitution required verbal war. All those Federalists and anti-Federalists going at each other hammer and tongs.

Today, we Americans are as divided as ever, and all sides tend to view the Constitution, the Founding Fathers' second stab at establishing a "perpetual union," as giving us permission to do what we want to do. We range from Constitutional fundamentalists, who read a document written in recognition that times change, as though times have not changed; to Constitutional creativists, who go searching in the documents for some clause that will let them do whatever they think needs doing.

I don't have any wise words to offer about the Constitution after my weekend immersion in it, but I do feel that, by going back and looking at the document and the men who wrote it, I've gained more perspective on today's partisan and divisive times. After all, if we as a country got through the clashes of conflicting ambitions and venal self-interests that informed the writing of our Constitution, surely our current political discord is capable of  producing some wise fruit.

Last week I had lunch with a young man who is deeply involved with the Tea Party Patriots. He was smart, well-stocked with information, had done a lot of thinking about important political issues, and was passionate about this country; in short, except for the issues he  focused on and the conclusions he drew, he could have been me at the same age --- back when I was deeply involved in the politics swirling around the Vietnam War.

This experience reinforced my belief that underneath our current American discord  is a shared love of America (which is not to be confused with approval of everything our government has done or is doing). And also, a shared love and respect for the U.S. Constitution, a document to which I frequently refer, but, until this past weekend, hadn't read in 30 years. Whether we agree with everything it says and sets up, that document is our American system of government.

If the Tea Party Patriots have done nothing else for me, they've made me realize it's time for each of us who engage in political discourse not just to think we know what we're talking about when we talk about the Constitution, but to know we know what we're talking about. After all, when it comes to arguing about what the Constitutions means, it's hardly legitimate to say that those who disagree with us haven't studied it, when we're not really all that familiar with it either.

Now please, don't misunderstand me, I'm not saying we have to become Constitutional scholars to be responsible citizens; we just have to read the document every decade or so. And think about it. And, perhaps, take a stroll through James Madison's head, its "Father," by reading some of his writings and some of  his friends' writings. And since we live close by, perhaps we could take a day and travel to Montpelier, James and Dolley Madison's newly restored home, and stand in the second floor study where Mr. Madison wrote much of our Constitution, and beam ourselves back to those equally partisan days.

That America was not this America, of course; its issues were very different. But I would argue its passions were not all that dissimilar from ours; just as I'd argue my passions are, perhaps, not all that dissimilar from my young Tea Party Patriot friend. Underneath all the anger and fear and yelling that fills our fractured discourse, both then and now, I would cautiously submit, we share a deep love of our country and worry about its future.





I do love my job. It got me invited to Montpelier's Center for the Constitution for the weekend, to attend a new seminar they're offering to re-introduce the general public to the U.S. constitution. It is a perfect situation in which to reconnect with Mr. Madison and his friends; both their world and their work.

I learned some, thought and read a lot. And plan to blog about it over the next couple of days.