Rare News Desk
New York Magazine published an interview with Supreme Court Justice Antonin Scalia, and it was AWESOME:
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“You’ve described yourself as a fainthearted originalist. But really, how fainthearted?”
I described myself as that a long time ago. I repudiate that.
…So you’re a stouthearted one.
I try to be. I try to be an honest originalist! I will take the bitter with the sweet! What I used “fainthearted” in reference to was—
Flogging, right?
Flogging. And what I would say now is, yes, if a state enacted a law permitting flogging, it is immensely stupid, but it is not unconstitutional. A lot of stuff that’s stupid is not unconstitutional. I gave a talk once where I said they ought to pass out to all federal judges a stamp, and the stamp says—Whack! [Pounds his fist.]—STUPID BUT CONSTITUTIONAL. Whack! [Pounds again.] STUPID BUT CONSTITUTIONAL! Whack! STUPID BUT CONSTITUTIONAL … [Laughs.] And then somebody sent me one.
Read the whole thing. It’s one of the best interviews with a black robe I’ve ever read. (Yes, I’m biased. Justice Scalia is my judicial and professional hero. Read it anyway.) It’s a great example of how silly we look when we try to play “gotcha” politics with the Supreme Court.
I chose to except the exchange above because I think it points to a crucial question that both sides of the aisle have conveniently chosen to ignore in favor of an easy kill: is it unconstitutional, or so stupid and irresponsible it seems like it should be unconstitutional? We on the right have an increasingly dangerous habit of holding up the Constitution as automatic authorization for whatever war we choose to wage, whether that war be against the “establishment,” the government, or the true enemy in the race to 2016–progressive Democrats.
I was disappointed when Apple decided to release the iPhone 5c. I felt like it unnecessarily cheapened an already excellent brand and bowed to a demand that wasn’t consistent with the company’s image. (Call me an elitist, you know I’m right.) I feel the same way when I see the Constitution trotted out in lazy attacks against bad policy. When we make “UNCONSTITUTIONAL!” our constant battle cry, we cheapen the meaning of the word. Not all stupid policies are unconstitutional, and not all constitutional policies are wise; but defaulting to “UNCONSTITUTIONAL!” every time a Democrat does something silly cheapens the brand and turns any valid invocation of the Constitution into a dog whistle.
The Constitution is not your talking point. It is not “sexy.” Its purpose is not to inspire the passions and pocketbooks of high dollar donors. It is a serious document that governs and represents something far more serious than your next 140 characters. If we’re serious about “taking on Washington,” we need to take ourselves and our arguments as seriously as we take our freedoms.
As if our lives depended upon it.
Amy Miller is a contributor to Rare. Follow her on Twitter @AmyVRWC.
