A GUIDED TOUR
The bizarre-o-world in which unreconstructed right-wingers dwell is no more clearly illustrated than by the surreal logic of ultra-right-wing justices. With the right-wing ideologues on the Supreme Court (i.e. the Scalia cabal), flagrant hypocrisy is exhibited over and over again in order to maintain their positions. Here’s a sample of jurisprudence, Scalia-style:
1. In the infamous 2010 Citizens United case, Scalia evidently thinks that Thomas Jefferson would have wholeheartedly endorsed corporations being given the same rights as people. Indeed, Scalia insists that powerful institutions should be given the right to free speech afforded to humans—rendering the ability to exercise that particular right proportional to one’s wealth. So much for “original intent”. As for the “judicial activism” that Scalia denounces: he is the epitome of it. Rarely does the rapist accuse the rape victim of being the assailant!
2. With regard to the 14th Amendment, the composers wrote an intentionally vague statement that was not limited exclusively to blacks. YET…Scalia insists that, since “blacks” is all they had in mind at the time, then THAT is all the “equal protections” clause can possibly apply to. Disenfranchised voters in 2000? Nope. Women? Nope. Latinos? Nope. Gays? Nope. Poor people? Nope. And…black people? Well, MAYBE…sometimes…when it’s convenient.
3. “States’ rights,” you say, Mr. Scalia? Only when it’s convenient for the right wing. Scalia enthusiastically intervened in state prerogative in 2000’s Bush v. Gore in order to sabotage the Florida election, thus depriving Gore of thousands of votes…thereby installing Bush (technically, the loser of the Florida vote) into the White House. Welcome to the world of a la carte “federalism”.
4. Separation of church and state? Not for Scalia. Even though this was OBVIOUSLY what the Founders had in mind, Scalia obstinately refuses to recognize that historical fact. The logical symmetry between freedom OF religion and freedom FROM religion is lost in Scalia World. Mr. Scalia’s “Strict Interpretation-ism” is a matter of reading each word in a sentence the way a 6 year old would: with utter disregard for what’s behind the words…or the context within which the statement was made.
5. The 2nd Amendment? Scalia adamantly demands that (contrary to the irrefutable historical evidence) the “right to bear arms” is a CATEGORICAL right that has nothing whatsoever to do with a civilian militia being required to protect the State. In the bizarre reading of the simple sentence that is the second amendment, the individual’s unconditional entitlement to arm himself at will is a matter of being able to STAND UP TO the State rather than to protect it. Never mind that history clearly demonstrates the opposite.
In Scalia World, consistent principles are forbidden—and “reality” is whatever one wants it to be. Their creed is IWC ODE: “Invoke When Convenient; Otherwise Disregard Entirely.” Judicial activism has never been more blatant than with Scalia and his cabal. That they do so in the name of “The Constitution” turns the odd maneuvering into an odd comedy.
In Reality, Ben Franklin and Thomas Jefferson knew perfectly well the Constitution had its shortcomings. Franklin and Jefferson were fully aware that the group of public figures gathered in Philadelphia during that summer of 1787 where fallible men, not prophets. The Founders would have surely scoffed at Scalia’s odd glorification of them—and his odd obsessions over the specific articulations, at the expense of discerning the MEANING BEHIND.
During the Constitutional convention, Ben Franklin stated: “Mr. President, I confess that there are several parts of this constitution which I do not at present approve, but I am not sure I shall never approve them.” The document was probably imperfect, but like most great minds, Franklin was always open to changing his mind upon further reflection—recognizing the fallibility of ANYTHING that they did that summer. “This will ALWAYS need to be revisted,” is what he was saying. After all, what they were composing was not a Royal Decree, to be carved in stone for all eternity, but a noble attempt to capture PRINCIPLES (principles best articulated, the case could be made, by Thomas Paine, who was tragically absent from those proceedings).
Franklin’s contributions to the proceedings involved the message of change-ability…and the prospects of perpetual progress. The Founders were establishing a new DYNAMIC, not inaugurating a new STASIS. Franklin’s words convey this quite clearly. He recognized that there were probably errors being penned in that room—that there were ways in which the product of their efforts may be defective—and therefore warrant further improvement as time progressed. “Someday, I might change my mind; I often do,” he essentially announced. He went on to state: “For having lived long, I have experienced many instances of being obliged by better information, or fuller consideration, to change opinions even on important subjects, which I once thought right, but found to be otherwise.”
Well, gee-wiz. I’ll be damned. What have we learned in the intervening 224 years? According to Scalia: nothing much. Thomas and Scalia’s ad hoc version of “Federalism” is peculiar because it predicated on a false assumption: that the Constitution was NOT composed to strengthen the federal State and weaken the separate states. Au contraire, under the Articles of Confederation, most states had their own navies and currencies. The point of the 1787 Constitution was to transplant a mere confederation of autonomous states with a robust, central government: to forge a unified governance—and thus a united sovereignty. The fetishization of “states’ rights” exhibited by contemporary federalists requires them to ignore the raison d’etre of the U.S. Constitution. The point was simple: There are certain broad principles that transcend any particular state’s prerogative or fashionable, local sentiment.
If something must be allowed in a democratic society, it must be allowed everywhere; if something must be forbidden in order for a society to remain democratic, it must be forbidden everywhere. Shrugging our shoulders and saying, “let’s just leave it up to each state,” is not a valid approach for such matters. If Alabama wants to become a Christian Theocracy (a right-wing utopia where abortion and dancing are outlawed while everyone can have an assault rifle in the kitchen cabinet), it is up to the federal government to say, “Too bad; you’re in the United States. You can’t do that in a civil society. In a democratic country, certain principles apply to everybody.”
Prerogative is relegated to states based on the elbow-room afforded when the federal government establishes universal guidelines for governance. The State makes national policy, and each local government may work within that framework. This is quite clear in the clause that stipulates that all powers not arrogated to the federal government shall be—by default—delegated to the separate states. This makes perfect sense.
Scalia’s IWC ODE “federalism” is symbiotic with his staunch adherence to “Originalism”. This fixation on “strict interpretation-ism” is antithetical to the original spirit behind the U.S. Constitution. For Scalia, the document is to be treated as Holy Writ: a sacred decree to be followed (just as a religious fundamentalist would follow his sacred text). For the rest of us, the Constitution is a historical artifact—something that was cobbled together by flawed men in a noble effort, reflecting the circumstances of that particular time and place. That is to say, the U.S. Constitution is a man-made document, replete with the idiosyncrasies and nuances indicative of man-made things—traits that must always be addressed as we evolve.
…unless you’re an obstinate traditionalist.
The irony is that Scalia isn’t even faithful to his own creed. He betrays “original intent” blatantly, time after time…in the name of his beloved literalism. This is unsurprising, as this is precisely what ALL fanatical literalists do with their sacred texts. Scalia follows the message of the Constitution about as well as the Vatican adheres to the message of Jesus of Nazareth (i.e. not very well). Right-wing mindsets are right-wing mindsets, regardless of the context. Like the religious fanatic, the sacred text is handled with the IWC ODE approach.
In reality, documents of ANY kind—insofar as they are byproducts of social conditions, interests, and values—reflect the circumstances that yielded them. They are thus often written in idiosyncratic locutions endemic to the era; they are articulated in terms of the idiom of the time and place. The crucial thing, then, in any exegesis, is to look at WHAT’S BEHIND the words, as opposed to fixating on the semantic constructs themselves—as if the particular phraseology existed in a vacuum. We must always ask: In the grand scheme of things, what were they really getting at—in their own idiosyncratic way? Indeed, the ways of human are always idiosyncratic.
Literalism always goes awry with such things.
“Original intent,” you say, Mr. Scalia? I see. Only white, wealthy MEN can vote? Hmm. How do you square THAT with your beloved S.I.?
Slavery’s perfectly fine? How do you like THAT “original intent”?
Senators shouldn’t be elected by the rabble? How’s original intent looking now, Mr. Scalia?
Suddenly, so-called “original intent” doesn’t sound so wonderfully sacrosanct. But pay such things no mind, Mr. Scalia. These are mere technicalities in your brilliant scheme.
“Privacy”? Not mentioned. “Racial integration”, “Separation of church and state”, “civil rights”? Such terms don’t occur anywhere in the document. Does it follow from this fact that these concepts aren’t addressed? Much of what many of us hold dear—now, in the 21st century—is nowhere written explicitly on those four pages of parchment—or in any of the (current) Amendments. In Scalia World, what are we to do? The answer: absolutely nothing.
What has enabled the document to endure is precisely what makes it so demanding: The fact that there were so many time-sensitive particulars intentionally left out. The document is somewhat immune to becoming “dated” by virtue of its adaptability. Adaptability doesn’t entail amorphous principles, as the Originalists would have us think.
(The “originalists”? What does that mean?)
Literalism is euphemistically dubbed “originalism”…as if anything other than literalism were some sort of betrayal of the Founders’ highest intentions. “Originalism” has an appeal because one doesn’t have to engage in critical thinking in order to partake in it. The mindset is ideal for the mentally lazy and the intellectually dishonest (i.e those like Scalia). Want to read any text without actually bothering to THINK? Then subscribe to Originalism. It’s that simple.
Reading words inked on parchment is a tricky business. One need only survey the exegetical shenanigans involved with other sanctified texts to be reminded of this. (Observe what’s been done with the underlying moral messages of Jesus of Nazareth.)
The Columbia law professor Jamal Greene put the point well: “If democratic legitimacy is the measure of a sound constitutional interpretive practice, then Justice Scalia needs to give an account of why and how rote obedience to the commitments of voters two centuries distant and wildly different in racial, ethnic, sexual, and culture composition can be justified on democratic grounds.” Rote obedience, indeed.
The reactionary mindset is a peculiar thing to observe. This is no more apparent than with the right wing’s treatment of the simple sentence that is the 2nd Amendment. In a 1991 interview, former Chief Justice Warren Burger noted that the NRA’s treatment of the 2nd Amendment was “one of the greatest pieces of fraud, I repeat the word ‘fraud’, on the American public by special interest groups that I have ever seen in my lifetime.” 2008’s D.C. v. Heller pertained more to the demands of the gun lobby than to freedom; it had more to do with Charlton Heston than with James Madison. It had everything to do with gun fetishism and nothing whatsoever to do with the original intentions of that Amendment.
Meanwhile, the right wing has always stressed “state sovereignty” (i.e. local prerogative over universal principle) whenever doing so suits its purpose. Three examples of this:
· The south’s maintenance—and promulgation—of slavery in the 19th century
· The efforts to impede civil rights legislation in the 20th century
· The agenda to abet corporate power while marginalizing those of “low” socio-economic status
“Go back to our founding principles,” you say? Change and progress were founding principles; what of them? Of course, conservatives are allergic to change and progress: whenever they encounter anything resembling evolution, they break out in hives. They will forever harken back to the chimerical “good ol’ days” of yore…when things “used to be” so much…better. Meanwhile, they will work incessantly to subvert the original spirit of the nation’s genesis: change and progress. Alas, fixation on “original intent” amounts to obsessing over original wording—thus conflating the distinction between the original MEANING of what was said and the original WORDING that was used at the time.
If left to the current right-wing interpretation, the Scalian version of the Preamble would begin, “We the People and Corporations…” and later read, “…to especially promote the welfare of those who are well-positioned socio-economically”. The GENERAL welfare is anathema to corporatists. The suggestion that corporations musn’t be afforded the rights of humans is consistently met with scorn.
The right-wing’s chronic disdain for progress, the contempt for civil society, the wanton disregard for the lesser fortunate, is palpable in every plank its platform. How else to rationalize this patently anti-democratic approach than to simply pass it off as the quintessence of democracy?
We must recognize S.I. for what it is: a fundamentalist religion. We can look forward to the day when charlatans like Scalia no longer plague the bench of the Supreme Court. Until then, they will continue to sabotage democracy in the name of democracy—a bate and switch that would have made INGSOC proud.
Unlike Clarence Thomas, Scalia is not dumb; he’s just consistently idiotic. While Thomas isn’t even qualified to teach a middle-school civic class (we should be embarrassed that such a man sits on the bench of ANY court), Scalia is marginally intelligent; he can’t use a low IQ as an excuse for his chronic intransigence. The incessant recalcitrance and hidebound view of ad hoc Federalists is exasperating to behold—as it misses the entire point of the U.S. Constitution.
The “necessary and proper” clause delegates to Congress the power “to make all laws which shall be necessary and proper for carrying into execution the foregoing powers”…including the promotion of “the general welfare” throughout the country—as stipulated in the preamble. To disregard this point is to ignore the clear intentions of our Founders. Alas, this is inconvenient to the agenda promoted by Scalia and his ilk: to serve special interests, not the common good. Scalia is an obstinate ideologue, it seems, because being so serves his purposes.
Scalia insists that he is merely adhering to “original intent”. So he perpetrates his flagrant mis-readings in the name of “strict interpretation”—a noble-sounding pretense. He may find it instructive to note Ben Franklin’s statement during the final days of the Constitutional Convention: “[I hope] that every member of the Convention who may still have objections to [the current wording of the document], would with me, on this occasion doubt a little of his own infallibility, and to make manifest our unanimity, put his name to this instrument.”
Although the document undoubtedly had its faults, Franklin doubted that any other assembly at the time—under the constraining circumstances in which they found themselves—would have been able to draft a better blueprint for a new Republic. In Scalia World, we’re obligated to mindlessly fixate on the idiom of THAT day, and ignore our own wisdom. Franklin would have been quite dismayed by such an approach. We should all be wary of it.
STRICT INTERPRETATIONISM & AD HOC “FEDERALISM”:
Antonin Scalia, in his feigned wisdom, tells us: Due to the fact that women’s rights aren’t explicitly stipulated in the Constitution, whether sexual discrimination is allowed or not is an issue properly delegated to each state’s legislature—in the name of state prerogative (a.k.a. “federalism”).
Like so man of his other bizarre comments, Antonin says this with a straight face…then is able to sleep well each night. The modus operandi is the unholy marriage of a fundamentalist approach to the U.S. Constitution called “originalism” and a peculiar thing called “federalism”.
Clarence Thomas notes that the specific words “separation of church and state” don’t occur in the Constitution, so whether or not any given state wishes to have its own state religion should be left to its own discretion—in the name of “federalism” and “original intent”. (The FTC, SEC, FAA, FDA, EPA, NIH, and any/all other agencies aren’t specified in the Constitution either. Shall we must nix them as well…in the name of “original intent”?)
Meanwhile, we can keep the CIA, the military industrial complex, the Federal Reserve, the DEA, K Street’s integral role in elections and legislation, as well as any of the other thing not explicitly stipulated in the Constitution…IF the right wing endorses it. Indeed, the right wing is perfectly fine with those particular institutions. Why is that? One may wonder: How does this double standard work?
Right-wing ideologues love to invoke this queer incantation called “original intent” to justify their decisions. Some call this bizarre approach “originalism”, others call it “strict constructionism”, and others call it “strict interpretationism”. Regardless of the label, it’s mindless fundamentalism. (A weed by any other name…) How does “originalism” fit into the right wing scheme?
The only question the Strict Interpretationist asks himself is: What did the framers intend AT THAT TIME? In other words: What did those particular men personally have in mind during the summer of 1787? Whatever that may be, it is surmised, THAT is the sole basis of all juris prudence…for all eternity.
That one would have to do a Vulcan mind-meld with James Madison to find out exactly what that is…well…that poses no problem for Antonin Scalia. He claims to be able to divine the thoughts of the framers. He insists that he has the power to get into the heads of the framers and ascertain what we should do NOW about circumstances that exist NOW. In other words, all Antonin’s decisions are strictly based on the particular mind-frame of certain men in 18th century Philadelphia. One wonders if Antonin holds a séance in his chambers each night in order to channel the spirit of, say, Ben Franklin, as needed.
Scalia must have had a doozey of a séance the night before the Citizens United case in 2010. The 1st Amendment applies to corporations, Antonin? Is THAT what the framers had in mind? (That the framers’ were very, very concerned about the power of Big Business seems not to be acknowledged by Mr. Strict Interpretationist.)
Big corporations should be treated as people, Antonin? Is THAT what Thomas Jefferson was thinking? Perhaps Antonin’s Vulcan mind-meld malfunctions from time to time. No matter: Antonin is going to do whatever he sees fit…under the aegis of “original intent”.
Was Madison thinking about social security and unemployment benefits during that summer of 1787? If not, we’re told, then such things are ipso facto unconstitutional. How about automatic weaponry? Involvement in the U.N.? What of the F.B.I.? Medicaid? Medicare? Food stamps? The Pentagon? Mass transit? The handling of public utilities? Energy policy? Wire-tapping? Indeed, regarding such matters, the men at the Constitutional Convention were only thinking of muskets, horse-and-buggies, and candles. So, for a Strict Interpretationist, that’s all the Constitution could possibly cover.
Right wing policy is pushed in the name of “original intent” on a regular basis by self-professed “originalists”. Why? Because the rational is useful for their purposes and readily modifiable. Scalia and his ilk have various tricks up their sleeve in order to carry out their agenda.
What of other strange treatments of the Constitution can we find? The examples seem endless. Scalia is perfectly fine with invoking the 1st Amendment to protect the influence of corporate power in elections…but a person can’t burn a flag in protest. How does that work? Simple: Scalia’s double-think knows no bounds. The framers meant what Antonin WANTS them to have meant. People = corporations. End of story. Thus, when HE legislates from the bench, he’s simply being faithful to “original intent”. YET…if anyone tries to map the spirit of the Constitution to present contexts in ways Scalia finds objectionable, well, then: They’re just “legislating from the bench”.
Funny how that works.
For Scalia, the 14th Amendment was ONLY meant to protect blacks…not women or Latinos or Jews or gays. The writers of the Amendment, AT THAT TIME, only had blacks in mind. THEREFORE, Scalia’s thinking goes, any human other than blacks can’t be covered by the Amendment. Q.E.D. Meanwhile, the 14th Amendment could be invoked to rationalize NOT counting all the ballots in Florida for Gore in the presidential election of 2000. Odd. What’s going on here?
“Federalism” now means the opposite of what it did during the first few decades of our nation. Instead of holding that more jurisdiction being allocated to the Federal government, “federalism” now involves a peculiar fetishization of “states’ rights”. “Federalism” is therefore handy to invoke when it’s convenient, and easy to ignore if it ever proves inconvenient. This works out wonderfully if you’re a “federalist”. The result: If you disagree with a federalist, then—well—you’re always wrong. It’s a marvelous system to behold.
Such an m.o. goes well beyond inconsistent application of “principles”; it is outright hypocrisy. Scalia, Thomas, Alito and Roberts—like Rehnquist before them—are not only unprincipled ideologues; they are shameless, unabashed Machiavellians. They love to invoke “federalism”, but only when it’s convenient for right-wing ideology. A brief survey of the right-wing approach:
Punishment for possessing marijuana: NOT states’ rights. The federal government can impose its will.
Pro-gun control: States’ rights. It’s not the federal government’s place to get involved in restricting gun rights.
Pro-gun rights: NOT states’ rights. The federal government can impose its will.
Theocracy: States’ rights. Leave it up to each state.
Anti-Euthanasia: NOT states’ rights. The federal government can impose its will.
Anti-gay rights: States’ rights. Leave it up to the states.
Gays’ right to marriage: NOT states’ rights. The federal government can impose its will.
Abortion: If it’s a matter of ALLOWING it, then it must only be a matter of states’ rights. But if it’s a matter of outlawing it outright, then the federal government can impose its will.
The ad hoc nature of contemporary “federalism” is blatant. How does this work? The 10th Amendment is bizarrely caricatured by the “Federalists” as something that it is not. The Amendment is a relatively straight-forward statement. It simply stipulates that powers not used at the FEDERAL level of government are to be automatically relegated (delegated) to the STATE level of government. In other words, the state government gets the balance of the powers remaining after the federal government’s roles are established BY THE FEDERAL GOVERNMENT.
The right wing takes this to mean that ANYTHING that was not explicitly stipulated in the Constitution during the summer of 1787 is—for all eternity—something that must be automatically relegated to the discretion of each state. In other words, if specific wording on the matter doesn’t occur in the 18th century document, it ipso facto goes to state-by-state jurisdiction. Congress’s sole role is to enact legislation that ONLY pertains to things the framers specifically had in mind at the time. Period.
This is, of course, preposterous. The 10th Amendment entails no such thing. This fact doesn’t prevent the right wing from insisting the 10th Amendment be invoked in the way that it desires. Certainly, contemporary “Federalists” like Scalia would have no qualms with imposing Federal mandates on things like gay marriage and abortion restrictions–thereby jettisoning any value for “states’ rights”. Scalia’s is an ideology of convenience.
In the distorted view of the 10th Amendment: Not explicitly mentioned in the Constitution = not allowed. Such a treatment requires one to utterly ignore the Preamble : The federal government’s role is to provide for the GENERAL WELFARE of the country…something that is above and beyond merely providing for the “common defense”. Public education, the fire department, unemployment insurance, retirement insurance, public healthcare: ALL are perfectly constitutional. Congress enacted each for the general welfare. For precisely this reason, George Washington endorsed Hamilton’s idea for a National Bank. By the time Madison was president, he endorsed the move as well.
Congress can, indeed, pass laws for the general welfare of the country…even establishing mechanisms that aren’t explicitly mentioned in the Constitution (such as a national bank). Nevertheless, right-wing ideologues wield invocations of the 10th Amendment like a magical incantation—as if merely mentioning it entailed that the federal government can’t do ANYTHING of which they don’t approve. Invoking the Amendment in the odd way that they do, the likes of Scalia can finagle all sorts of queer rationalizations. As a result, the right wing justices on the bench are the most “activist” judges of all…the welfare of the general populace be damned.
Jack Rakove sums up Strict Interpretationism as follows: “[Originalism] is always in some fundamental sense anti-democratic, in that it seeks to subordinate the judgment of present generations to the wisdom of their distant (political) ancestors.” He goes on: “The real problems of reconstructing coherent intentions and understandings from the evidence of history raise serious questions about the capacity of originalist forays to yield the definitive conclusions that the advocates of this theory claim to find.” Here’s the catch: “I happen to like originalist arguments when the weight of the evidence seems to support the constitutional outcome I favor—and that may be as good a clue to the appeal of originalism as any other.”
“This doesn’t get said enough: Scalia is an intellectual fraud who uses a phony methodology to get whatever judicial outcomes align with his political preferences,” Paul F. Campos noted on Salon.com in early 2013. Indeed, the horrible decisions made by–and the even worse opinions written by–Antonin Scalia are mind-boggling to behold.
Case in point: 2008‘s District of Columbia v. Heller. For the first time ever, the 2nd Amendment was twisted and contorted to mean “the right for the INDIVIDUAL to carry lethal firearms at his own discretion, for his own purposes.” That is, the “right to bear arms” existed for any given person…independently of the person being part of a militia regulated BY the State…for the explicit purpose of PROTECTING THE STATE.
In doing this, Scalia (and his right-wing brethren on the bench) overruled a 70-year-old precedent (established via United States v. Miller in 1939) that affirmed that the militia component was integral to the amendment’s meaning. In Miller, the Supreme Court categorically rejected the “individual’s prerogative” interpretation…simply because the justices bothered to READ what the 2nd Amendment ACTUALLY SAID.
Thus, for 70 years, the matter was considered settled…by scholars, by civic-minded people, by people with the literacy of a 6th grader, and by anyone with common sense. Since 1939, courts around the country relied on Miller as decisive.
But then… along came Scalia. Antonin’s rationalization for thwarting Miller? Well, you see, it applied only to sawed-off shotguns. (Never mind that the Amendment itself applied only to 18th century muskets…and existed only insofar as there was no standing / professional army to protect the State.)
In sum: Heller was blatant revisionism. Richard Posner called the preposterous decision “overt judicial activism”. Alas, overt judicial activism is Scalia’s stock in trade. In Scalia World, upsetting decades of settled law in order to advance a right-wing agenda is standard operating procedure. A well-regulated militia being necessary or not to protect the State, people should be able to do whatever the NRA WANTS them to do. Period.
So it goes in Scalia’s mind.
So it goes with other horrible decisions. Bush v. Gore and Citizens United were not only remarkably obtuse, they flagrantly contravened democracy. But that makes perfect sense for someone who believes in actively promoting plutocracy. (Scalia cares about democracy in an analogous way that an arsonist cares about fire safety.)
The former decision enabled a man who clearly lost a presidential election to be installed in the White House. The latter decision allowed unlimited flows of anonymous money into the election system–thereby declaring that money is a form of speech and that one’s voice should be a function of one’s financial power. BOTH decisions were the most over-reaching Supreme Court decisions of modern times. (That’s called “originalism”, by the way.)
Such decisions are inimical to social democracy. But that’s just how Scalia likes it. If it were up to Antonin, homosexuality would be a crime, reproductive rights would be outlawed, everyone would be armed to the teeth with guns, the U.S. would be a Christian theocracy, and corporate power would govern society.
The best book on our understanding of the U.S. Constitution is Jack Rakove’s Pulitzer Prize-winning Original Meanings (1996). Scalia would be well advised to read Chapter 1, “The Perils of Originalism”—just 20 pages that may show him the obvious errors of his egregiously defective views. Also indispensable is Bernard Bailyn’s The Ideological Origins of the American Revolution (1967).
A moderately right-wing approach that is worthwhile is Forrest McDonald’s Novus Ordo Seclorum: a thought-provoking perspective. The Invisible Constitution by Lawrence Tribe and The Living Constitution by David Strauss are both great books about the treatment of the Constitution since its creation.