SCALIA ON ICONIC DOCUMENT

    "For Pete's sake, it is a legal document. It means what it says and it doesn't mean what it doesn't say," Scalia said during his talk Wednesday. He also discussed diversity in the Supreme Court.

 

The quotation is from a FB post, perhaps a tweet, issued out of Santa Clara University Law School that didn’t link to a published article, regarding Justice Scalia’s talk Wednesday there. 

 

Let’s say that Scalia is right to call the Constitution a legal document.  That was established definitively in Marbury when the Court treated it as ruling law for use in court to decide cases.

 

But to the American people, the Constitution means so much more than a shopping list of powers conferred and rights granted in principle.

 

The framers may not have imagined that they were creating more than a list, but it didn’t take much for the people living under its aegis to turn it into something of biblical proportion into which we project our hopes, dreams, ideals when it comes to justice and reason.  

 

We treat it as the word of God, although we call this god “the Framers” or “the Founding Fathers.”  We treat them corporately, because individually it gets messy.

 

This is where Justice Scalia fails to recognize that his legal document has developed iconic status where all the other inspirational documents have fallen far short, especially the old and new testaments. 

 

Our biblical notion of religion-based law was found wanting, otherwise it would have been adopted.  

 

In fact, the old ideas fell so far short that it took a six thousand word amendment in the form of our Constitution to set it right.  

 

And still it wasn’t right.  

 

And may never be.  

 

But it has seemed a worthwhile effort as a guide with room for change.  So we keep after it.

 

It’s the change part that Scalia bridles against because this requires individual judgment which can always be traced to a feeling or sense of justice that takes time and sources almost beyond tracing; and these are outside the four corners of any legal document.

 

Here’s a published report on the talk from sfgate:  

 

At Santa Clara, Scalia says he’s a dissident on a liberal court 
http://www.sfgate.com/news/article/At-Santa-Clara-Scalia-says-he-s-a-dissident-on-6597321.php?cmpid=email-tablet 

 

 

rs

 

There seems to be a principle hovering in background on this.

 

When one writes and publishes a document meant to guide people's lives, one had better take into account the use they will make of it.  Christians, Jews, Muslims, people of the Book, all purport to take the principles of their being from the Old Testament, the New, and the Koran, all accepting that the common father of all of them is Abraham, who was closer to God than may have been good for him, or his son, whom he was ordered to sacrifice until, according to the tale-tellers,  God intervened, teaching us what, exactly?

 

As a fellow tale-teller, you can do that as well as anyone, especially if you hate the idea of sacrificing your firstborn son to someone else's notion of what God wants at the moment.

 

The purpose a constitution serves for a people is as a guide for living life.  No wonder they treat it as an iconic document, not a list, any more than they treat the flag as a piece of cloth instead of the symbol of their hope and prayers.

 

We make a big deal of flag-waving at parades, ballgames, etc.

 

I suppose that we could wave around a booklet containing the Constitution. The 3" x 6" version I have before me presents the entire document in 25 min-pages.

 

But words don't seem to have quite the same emotional grab as does a wordless symbol.

 

To protect the driveways in my neighborhood in San Francisco, the neighbors have had the city paint the curb tips red bearing the SFMTA initials in yellow.  They're ignored and motorists park their cars into the driveways all the time.  

 

So, we put up no parking signs threatening towing.  

 

Same effect.  

 

Ignored.  

 

But, now we've placed red safety cones in the street next to the red curb tips and guess what.  

 

Motorists have read the silent cones a lot better than any words and have stopped parking where they are not welcome.

 

Symbols tell people we mean business, don't mess with us. 

 

China claims the South China Sea for itself, extending its power, despite objection from Vietnam and the Philippines.  China has built an island on a contested shoal in the Spratly Islands, complete with three airstrips.

 

We don't like this challenge to our influence and relationships among the protesting countries.

 

So we sailed one of our ballistic missile destroyers close by, within twelve miles, of the objectionable island.

 

China is rattling its bamboo saber and threatening war if this continues.

 

We start with symbols and proceed from there.

 

I'm not saying don't mess with other people's symbols; I am saying, don't mess with ours, as we can be as nasty as anyone we dislike.