Roger and I were out in the rain, picking the last of his habanero peppers for the scorched-gullet concoction he sells to scattered lunatics across the country.
I asked him what he thought of the health care debate, the economy and other major shapers of the political landscape.
“The first question on any governmental enterprise – new or existing – should be whether it fits within the duties and privileges specified within the Constitution,” Roger said as we headed toward his old Ford flatbed with four bucketsful.
“Well, maybe,” I said. “But those folks back in the 1700s couldn’t have anticipated everything a modern society needs.”
“That’s why they made it possible to amend the contract,” he said.
“Contract?” I said. “I thought you were talking about the Constitution.”
Roger took off his rubber gloves, grabbed a clean towel off the truck seat and wiped his brow.
“Same thing. It was a contract that the people made with each other about how their shared government would operate,” he said. “And you don’t unilaterally reinterpret contracts because society has changed. If the contract needs changes, the parties have to mutually agree. With the Constitution, that’s called amending it.”
“But you know how hard it is to get an amendment,” I said. “It takes forever, and there are some problems that need addressing now. The Constitution should be a living document.”
“So, if courts start adding things that ‘ought’ to be in the Constitution or taking away things that ‘ought not’ to be in it, who gets to decide?” Roger asked. “Why is that not the same as having the courts legislate instead of interpret? And how does that protect the separation of powers?”
I doffed my gloves and chugged a quart of water while I tried to come up with answers. Roger continued.
“Justice Antonin Scalia is the probably the most outspoken of the ‘Originalist’ interpreters. He and his ilk interpret the Constitution according to their best grasp of its original meaning, even when the result is not what they want.
“When he speaks at law schools, Scalia often encourages law students to ask their ‘Living Constitution’ professors this question: ‘OK, professor, you are not an originalist; what is your criterion?’”
I stayed silent.
“Some people view the U.S. Constitution as Play-Doh – a toy to be molded to their whimsy,” Roger said. “I know it’s not popular to quote Scalia, but I’ll do it again: ‘Thºe worst thing about the Living Constitution is that it will destroy the Constitution.’”
Contact Daily Journal Oxford Bureau reporter Errol Castens at (662) 281-1069 or firstname.lastname@example.org. Read his blog at NEMS360.com.
Errol Castens/NEMS Daily Journal