Any justice who upholds my right to burn the American flag can’t be all bad, and, as Ruth Bader Ginsburg showed us, Antonin Scalia, who died Saturday, could be your personal friend even as he was your ideological foe (“I love him, but sometimes I’d like to strangle him”), which is exactly how it should be in a republic. A man of great intellect and wit, who defended with integrity what was in truth a very narrow vision of the Constitution and the country, Scalia also bears some responsibility for the partisanship and incivility that are strangling the public discourse. I think his embrace of “original intent” (the belief that the meaning of the Constitution was set at its creation) was more nuanced than either his apologists or his critics contend, but in the end it simply underestimates the founding fathers he claimed to revere, men trying desperately to hold together a confederation on the edge of dissolution. They disagreed deeply about the composition of the new nation – and since they didn’t agree, it’s improbable they thought they could speak with certainty for unborn generations. They had lived through times of tumultuous change, and when they looked around America, they did not yet see heaven on earth. They knew that some issues could only be resolved when the nation had matured. One – the “slavery question” – would take the Civil War to settle.
“[T]he multiple ambiguities embedded in the Constitution made it an inherently ‘living’ document,” writes Joseph Ellis in The Quartet, his exceptional collective biography of Washington, Madison, Hamilton and John Jay. “For it was designed not to offer clear answers to the [state or national] sovereignty question (or, for that matter, the scope of executive or judicial authority) but instead to provide a political arena in which arguments about those contested issues could continue in a deliberative fashion. The Constitution was intended less to resolve arguments than to make argument itself the solution. For judicial devotees of ‘originalism’ or ‘original intent,’ this should be a disarming insight, since it made the Constitution the foundation for an ever-shifting dialogue that, like history itself, was an argument without end" (p. 172).
The Constitution, Jefferson insisted, is not “too sacred to be touched.” Its brilliance is that it provides an architecture for governance and a process for resolving issues deliberatively and reasonably. Judging by Saturday night’s debate, it has its work cut out for it.