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  Arts Culture Analysis  
Vol. 16, No. 2, 2017
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Robert J. Lewis
  Senior Editor
Bernard Dubé
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Nick Catalano
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Nick Catalano is a TV writer/producer and Professor of Literature and Music at Pace University. He reviews books and music for several journals and is the author of Clifford Brown: The Life and Art of the Legendary Jazz Trumpeter, New York Nights: Performing, Producing and Writing in Gotham and A New Yorker at Sea. His latest book, Tales of a Hamptons Sailor, is now available. For Nick's reviews, visit his website:


Over 2500 years ago the Greek philosopher Heraclitus averred that "the only thing that is constant is change." Since then Constitutionalists from democratic Athens, imperial Rome, 13th century English monarchy and Age of Enlightenment parliamentary states have striven to create governmental frameworks that preserve individual freedoms while protecting social order.

The American founding fathers drew upon these frameworks and, in 1789, created a document which has become an ideal for advanced contemporary societies that embrace democratic principles. But they no sooner enacted these remarkable pages when they realized that they needed amendments; thus the Bill of Rights was ratified in 1791. Since then many other amendments have been passed as the populace and its legislators gained knowledge of developing personal and societal needs.

If we focus only on the 20th century we observe many turnarounds, evolutions and other changes. In 1917 Congress passed the 18th amendment, ratified in January of 1919, prohibiting use of alcohol. Then, in rebus inane, after chasing smugglers and bootleggers, crashing tens of thousands of speakeasies, and initiating a huge escalation in organized crime throughout the nation, the legislators went back to the drawing board, rescinded their mistaken thinking, finally putting to an end 15 years of chaos dubbed the "roaring twenties." Also in 1918 Congress caught up with European egalitarianism and passed the 19th amendment giving women the right to vote.

It is presently in the U.S. Supreme Court nomination process where the terms ‘originalism’ and ‘originalist’ have been bandied about by recently elected officials who know little about the narrowness and vacillation in key Supreme Court decisions as the following illustrate:

In 1857, the Supreme Court enacted the infamous Dred Scott decision known by every schoolboy, which declared that negroes were inferior to whites -- arguably the low point in the history of the court. This decision was overturned by the 13th and 14th amendments.

Lesser known. In 1896, in what is one of the most unimaginable rulings in the Court's history, the judges enacted Plessy vs. Ferguson. This decision legitimized the incredulous segregation ordinances and laws in racist southern states and made segregation legal throughout America. The court defined "race" as either black or white and instantly dissolved the entire Creole population in southern cities. It wasn't until 1954, in Brown vs. Board of Education, and in 1956 in Browder vs. Gayle that the court eventually eliminated segregation in schools and buses respectively.

In 1883, in Pace vs. Alabama, the court ruled it illegal to have marriage between races and this decision wasn't reversed until Loving vs.Virginia which finally legalized miscegenation.

One of the most laughable rulings was Bowers vs. Hardwick in 1986 which effectively outlawed "abnormal" sexual activity in one's own home! The rapid reversal came in Laurence vs. Texas which finally ended the snickering in 2003.

In its history the Supreme Court has enacted dozens of decisions reversing earlier court actions on the amendments which changed the original thinking of the framers. And yet presently the concept of ‘originalism’ is being lauded as some sort of sacred cow and the court’s history of change is being ignored.

The most recent and most controversial Supreme Court ‘originalist’ thinking comes from justices Antonin Scalia and Clarence Thomas who both dissented in the Laurence vs. Texas fiasco. They have expostulated on their decisions with statements exemplifying their irrational philosophies:

Antonin Scalia
"[There's] the argument of flexibility and it goes something like this: The Constitution is over 200 years old and societies change. It has to change with society, like a living organism, or it will become brittle and break. But you would have to be an idiot to believe that; the Constitution is not a living organism; it is a legal document. It says something and doesn't say other things . . . "

Scalia believed that legal documents occupy the very top rung of reality transcending epistemology, biological evolution, gender evolution, evolving and hard fought racial and social norms, emerging mathematical, physical, and chemical discoveries and laws, and the aforementioned legal transformations of the last 2500 years. In sum, Scalia placed the words of the framers of 200 years ago beyond the scope of any reasonable thinking. He insisted that Supreme Court decisions were to be made in an impenetrable vacuum of words and syntaxes which could never be changed.

Later Scalia mused that flexibility does in fact exist in the legislative process. "You think the death penalty is a good idea? . . . persuade your fellow citizens to adopt it. You want a right to abortion? Persuade your fellow citizens and enact it. That's flexibility." But with his history of judicial intransigence, Scalia ignored the implications of his own statement. Whenever ‘flexed’ legislation came to his desk no matter how sensible, he would decide against it based on his narrow originalist thinking.

“Let me put it this way; there are really only two ways to interpret the Constitution – try to discern as best we can what the framers intended or make it up. No matter how ingenious, imaginative or artfully put, unless interpretive methodologies are tied to the original intent of the framers, they have no more basis in the Constitution than the latest football scores. To be sure, even the most conscientious effort to adhere to the original intent of the framers of our Constitution is flawed, as all methodologies and human institutions are; but at least originalism has the advantage of being legitimate and, I might add, impartial."

Thomas’s assumption is that the correct tying of interpretations to ‘the original intent’ can only be made by some static originalist such as himself.

Much more enlightened rhetoric on the subject came from Oliver Wendell Holmes in an opinion he rendered in the 1920 decision Missouri vs. Holland:

"With regard to that we may add that when we are dealing with words that also are a constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to realize or to hope that they had created an organism; it has taken a century and has cost their successors much sweat and blood to prove that they created a nation. The case before us must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago."

Woodrow Wilson offered the following:

"Society is a living organism and must obey the laws of life, not of mechanics; it must develop. All that progressives ask or desire is permission -- in an era when "development," "evolution," is the scientific word -- to interpret the Constitution according to the Darwinian principle; all they ask is recognition of the fact that a nation is a living thing and not a machine."

Donald Trump’s nomination of Neil Gorsuch to the court was made solely on the basis of his ties to Scalia’s ‘originalist’ thinking. Certainly Trump has never exhibited even the slightest awareness of the court’s historical fluctuation and its retracing of flawed rulings. Interestingly, Gorsuch’s vetting has revealed evidence of demonstrated judicial expertise beyond any pattern of originalism and Trump’s nomination of him may actually prove to have ironical consequences.



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The problem with originalism is that it doesn't allow for common sense, which is a real Paine in the butt of logic and the passage of time that renders decisions made way back then obsolete. There was no Internet in 1789. What is right and what is just are not fixed for ever, just as what is right for one person may be wrong for the next. This article is thought-provoking because it forces you to go beyond the article and ask what makes for a competent Supreme Court Justice.
Nick - always good - this is particularly a good one.
I always look forward to Dr Catalano's interesting
takes on past and present history reviews. It is certainly eye- opening!

Time will prove the consequences as in everything

By Nick Catalano:
Aristotle: Film Critic
The Maw of Deregulated Capitalism
Demagogues: The Rhetoric of Barbarism
The Guns of August
Miles Ahead and Born to Be Blue
Manon Lescaut @The Met
An American in Paris
What We Don't Know about Eastern Culture
Black Earth (book review)
Cuban Jazz
HD Opera - Game Changer
Film Treatment of Stolen Art
Stains and Blemishes in Democracy
Intersteller (film review)
Shakespeare, Shelley & Woody Allen
Mystery and Human Sacrifice at the Parthenon
Carol Fredette (Jazz)
Amsterdam (book review)
Vermeer Nation
The Case for Da Vinci's Demons


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