RIP Antonin Scalia, who died today. So did the U.S. Constitution. The Constitution, however, has been sick for many years. Here's what I wrote back in 2010:
In 2008, the Supreme Court barely upheld the second amendment by a narrow 5-4 decision in DC v. Heller. The second amendment is all of ONE SENTENCE LONG and we’ve been debating its meaning for 220 years. It couldn’t be simpler. Yet it barely squeaked by with nary a vote to spare. A similar case, McDonald v. Chicago, is in the court right now and as usual, all bets are off despite that one, single, simple, clear, sentence.
Now we have a new “right to healthcare”. This week the president rewired 17% of the US economy with the stroke of a pen and a new 3000 page law. Remember, the second amendment is one sentence long! How are we going to interpret our new 3000 page right to healthcare? Of course, unlike the right to bear arms, which hangs from a thread, the right to healthcare is not in the constitution.
Nor is the “right” to Social Security, Medicaid, or Medicare, but the court has never done anything about them either. These programs are like “deem and pass” amendments, unofficial changes to the constitution that we have selfishly agreed to allow because, hey, we like free stuff. All the while, we shamelessly stick our kids and grandkids with the bill, but we’re worth it, right?
Roe v. Wade is based on another non-existent right, the so-called “right to privacy”. This right was based on a “penumbra” or weak shadow, cast by the bill of rights. Seriously, that’s how they justified it. The imaginary right to privacy was conjured-up by lawyers looking to find exactly what they needed in the constitution. It is made-up. Yet that hasn’t stopped this law from surviving for some 26 years.
We just watched the spectacle of the President berating the Supreme Court in his State of the Union Speech because they had the temerity to uphold the first amendment in Citizens United v. FEC. Again, that was a narrow 5-4 decision on the really complicated first amendment, which is another behemoth at one sentence long!
In short, rights that really are there, in clear language, must fight to within an inch of their lives, while imaginary rights, like the latest one, are cheered through with parades and marching bands.
So I ask: If the constitution can mean anything, is it not really meaningless? Picture an orchestra warming up. There is no rhythm, no melody, no key, no limits, and no beauty. Just avant-garde progressive noise. That is the music of our modern US constitution.