Constitutional fundamentalists, like other fundamentalists, yield thought and free will in worship and submission to the dead authority of the thanatocracy, a system that is dead, dead, dead.
Dead, Dead, Dead
It’s not a living document. It’s dead, dead, dead.[1]Source, Dallas Morning News.
A thanatocracy: the King of the Dead, from Lord of the Rings, ‘The Return of the King.’ Copyright Warner Brothers Entertainment and New Line Cinema, all rights reserved.
In 2013, Justice Antonin Scalia made this pronouncement at SMU.
His comment is concerning for several reasons. The first reason is the obvious facts: we have amended the U.S. Constitution 27 times; there is no reason that we will not do so again in the future. As for the existing Amendments, these were not minor additions and corrections: the Constitution was ratified in June of 1788, and less than a year later, the Founders thought their work so flawed that they introduced, not one, but ten Amendments in quick order, which were ratified in 1791. Today we know those Amendments as the Bill of Rights.
Bill of Rights
We can’t imagine that Scalia would have objected to the Bill of Rights. If the Constitution is done and dead, how can we explain such a radical expansion of it, just one year after it was ‘finished’? Which interpretation should Constitutional fundamentalists enforce, the 1788 version? Or the 1791 version?
Of course, the Bill of Rights was introduced in the early U.S. Republic, and many of the original Framers contributed to the update – deferring to earlier authority is an important insight into the fundamentalist mindset – but we continued to expand and modify our founding document repeatedly since then. Would Scalia have object to the 1865 13th Amendment, abolishing slavery? What about the 1870 15th and the 1920 19th Amendments, giving the vote to African Americans and women? Or the 1965 24th Amendment, abolishing poll taxes?
Certainly Scalia would have accepted some of these. So how could the Constitution be changed repeatedly, if it were dead?
Unenumerated Rights
Then there is one of my favorites, the 9th Amendment, part of the Bill of Rights: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” In effect, it states that citizens may retain rights which are not specifically listed in the Constitution, nor in the Amendments, nor in any statutory law, particularly if the denial of those rights violates any of our central principles, rights, or privileges. This Amendment patently declares that the Constitution is not complete, nor perfect. That is a large blow to the fundamentalist argument.
The Authoritarian
Scalia’s insistence raises another, more concerning spectre: Who gave him the power to decide for the rest of us if the Constitution is dead or alive? If he can declare this unilaterally, without the input of the citizens and our elected officials (remember, Scalia was appointed, not elected), nor even the input of the other Justices, then we are no longer a democracy, nor a free society. On the other hand, if we are a free society and a democracy, then Scalia is doing nothing more than stating his opinion, that he would prefer that be Constitution be ‘dead, dead, dead.’
Then consider that civil suits exist because each law can be interpreted differently, and because cases arise in which one law or principal is in conflict with another. So if the Constitution is dead, then the final interpretation of it belongs to the judges, particularly the Supreme Court. In effect, Scalia is not only arguing that the Constitution is beyond objection or question, but that the courts’ interpretation of it, and most of all interpretation of it is above objection or question. It’s an authoritarian overreach.
The Fundamentalist Grab
This is a large power grab, but it is a central idea of the fundamentalists’ argument: fundamental documents only have one interpretation and, Oh by the way? By happy coincidence, that only interpretation is my interpretation.
This is the source of terror under Torquemada‘s or Catherine di Medici‘s fundamentalist interpretation of Christianity; the Nazis’ fundamentalist interpretation of science, genetics, and Darwinism; Stalin’s, Mao’s, or Pol Pot’s fundamentalist interpretation of communism; or al Qaeda’s or ISIL’s fundamentalist interpretation of Islam. When someone argues for only one point of view, they are arguing for their own authoritarian power.
Which means they are arguing against other opinions and interpretations, which in turn means they are arguing against equality and democracy.
This view is supported by the fact that Scalia argued that the Constitution is dead as a factual point, rather than stating the truth: it was only his personal opinion that the Constitution is dead. By presenting his statement, not as an opinion, but as an authoritative, categorical truth for everyone, then he was trying to convince us, or even hoodwink us, into bowing to his personal world view. Again, an argument against equality and democracy.
The Thanatocracy
We are not the subordinates of the U.S. Founders. We are their equals. If a democratic Constitution cannot be changed by the people, then it does not belong to the people. If that is so, then it is no longer a democracy.
Fundamentalists of all stripes attempt to invoke a thanatocracy,[2]I was originally going to use the word ‘necrocracy’ in this post. But necro– is Latin for ‘death’, but –cracy is Greek for ‘power’ or … Continue reading a deification, worship, and obeisance to dead people. Today, the most notorious thanatocracy is in North Korea, where the reverence paid to Kim Il-sung, and now Kim Jung-il, exceeds the definition of a cult of personality, and fills the role of a national religion. It should worry us any time our ideas match up nicely with the dysfunctions of North Korea.
We are Americans. We are proud, independent-minded individualists. We should defer in our ideas and our behavior to no authority, and anyone who suggests otherwise is, by default, suspect. Citizens in a democracy must bow to no other person. Not to anyone alive.
Nor dead.
Footnotes
| ↑1 | Source, Dallas Morning News. |
|---|---|
| ↑2 | I was originally going to use the word ‘necrocracy’ in this post. But necro– is Latin for ‘death’, but –cracy is Greek for ‘power’ or ‘rule’. Since thanato– is also Greek for death, the etymology is cleaner. In addition, thanatocracy, carries additional meanings, including the idea that the government is a source of much death, which would include the murderers such as Torquemada, Mao, ISIL, etc. More, ‘thanatocracy’ also refers to a system which is stagnant and decayed, suggesting that the culture itself is dead. |
Gee Joe, this post constitutes, in military parlance, a “target rich environment”. But since I am hurriedly preparing for a three day drive to Charlottesville, I’ll leave it at this … remind me never to engage in a contractual arrangement with you. I am imagining the conversation a few years down the road.
Me: Joe, our contract states that I am to pay you $X per book. Now you are asking $2X per book?
Joe: Well, society and circumstances have changed. Among other things, our currency has been devalued. And, in general, we now view most contracts as living documents that we must interpret in view of the realities of today. And it’s clear that our intent was that I be paid in 2017 equivalent dollars., plus 50%
Me: Well, the reality of today is that it may have been your intent, but it wasn’t mine and it wasn’t stated in the legal document we both signed.
Joe: Well, I have a judge here in Lafayette who has ruled that it WAS our intent and that the contract says just that.
Me: What?!? Have you read the contract lately?
Joe: Doesn’t matter. All that matters is this judge’s interpretation, and he’s my cousin. So, pay up if you don’t want to go to jail.
Me: Yeah? Well, I still have my arsenal of 2nd Amendment firearms, so come and get it.
Sheesh, and that’s how civil wars get started.
Nice point, but there’s one important omission from your argument.
If we agree to alter the contract, then there’s no problem.
Which is the benchmark for altering our foundational contract: ratification. If the supermajority agrees, then the Constitution changes, in any way that the voters decide.
Naturally, if you are part of the minority you won’t like it. You might even claim we have broken a contract. But if the contract specifically lays out how the contract can be altered or nullified, and the voters have fulfilled the requirements, then I cannot see how the objecting minority have a valid complaint.
The Constitution does not belong to the Founders, nor to Scalia. It is ours.
As long as we live and breathe, it lives and breathes.
Ah, Joe, but you are missing the point. What has been happening lately has not been the altering of the contract through ratification. It has been through judicial activism – rulings by life-appointed justices at multiple levels who do not answer to the electorate.
I’m all for constitutional amendments. There are a few I would support. But no one wants to expend the effort to go this route . Stacking the judiciary in your favor is much easier.