The opening salvos have been fired in the battle over Sandra Day O’Connor’s replacement, offering vivid, if disquieting, reminders of just how polarized America has become.
The opening salvos have been fired in the battle over Sandra Day O’Connor’s replacement, offering vivid, if disquieting, reminders of just how polarized America has become.
The upcoming debates will be conducted in English, but the words will mean very different things to the different audiences for which they are intended. We will hear a lot, for example, about “original intent,” and “strict construction.” To demonstrate that such terms are less than analytically useful, we need only refer to definitions offered by two Justices thought to embody the concepts.
William Rehnquist reportedly told Nixon that a “strict constructionist” is “generally not favorably inclined toward criminal defendants or civil rights plaintiffs.” For his part, Antonin Scalia disdains the term. He prefers “textualist,” one who requires that rulings be anchored in the actual text of the constitution. Of course, as many legal scholars have pointed out, the text offers no basis for overruling state medical marijuana laws. And since the Fourteenth Amendment’s Equal Protection clause applies only to the states, its text cannot be used to limit federal affirmative action programs. Yet despite the lack of textual support—not to mention the clear language of the Ninth and Tenth Amendments limiting federal power over the states—Scalia supported both decisions.
The truth of the matter is that we all bring our own intellectual and cultural baggage to these debates. Take terms like “living constitution.” To some, it is shorthand for nine unelected judges making it all up as they go. For others, it is the effort to apply constitutional principles to changing circumstances—to decide how the First Amendment should apply to recently invented communications media, or whether the Fourth Amendment should limit government’s use of new spy technologies.
Original intent? As I sometimes ask my students, what did James Madison think about censoring the internet?
At their base, these battles over constitutional interpretation are part of an ongoing fight for control of the culture, which is often seen as debased. In a recent, little-noted column for a Catholic newspaper, Senator Rich Santorum blamed the Church’s molestation scandals on “liberalism,” and continued “While it is no excuse for this scandal, it is no surprise that Boston, a seat of academic, political and cultural liberalism in America, lies at the center of the storm.”
A different version of cultural failure is suggested by a reading of Transparency International’s current Corruption Perception Index. As one eminent religion scholar notes, among the twelve nations ranked “least corrupt” are eight also ranked as “least religious,” while the highly religious United States ranked 14th. Shouldn’t a genuinely religious culture also be a moral one? Some Americans evidently confine the term morality to sexual conduct; others define it to include economic behaviors.
The upcoming confirmation fight promises to be so bruising because law inevitably affects culture. The passions that are sure to emerge will be less about the nominee, whoever that turns out to be, than about the standards by which we want American culture to be judged.