I have written about Justice Scalia here and here in different contexts. I am not going to talk about his jurisprudence or personality or anything like that. We all mourn his loss and the effect it will have on the court. But what strikes me as interesting and inspiring through the ongoing political debate and retrospectives on his life, was Scalia’s notion of originalism. The idea is that you interpret the constitution as it was originally written. We should view it in the context of the Founders as they wrote a spectacular document that broke from centuries of tyranny and oppression at the hand of dictators and monarchs, sometimes with self-declared divine powers. The thing is, we have no perspective to really view institutional tyranny, so as we view questions of legality, we have to trust the framers that they had more important life experience in this case, than we do now. We have no idea how to make a decision in the shadow of tyranny, so we trust a bunch of guys and the way they viewed the world 240 years ago, because in this respect, they are smarter than us. Think about that for a second.
This triggered a thought from my past. About 20 years ago I was called for jury duty. I believe the case was in Sommerville. The accused was charged with grand theft from a Home Depot. As the jury listened to questioning and testimony, there were constant objections to certain lines of questioning. We had no idea why, but by the end, all we really heard was that the defendant loaded up a shopping cart, walked it past the checkout machines, was confronted by a clerk, and then left the cart and walked out the door. There was very little evidence of anything.
As we entered the deliberation room, the foreman reviewed the evidence, we talked a little and then voted. Everyone voted guilty except me. Over the next 15 minutes I led a discussion about the impact of the actual evidence. I had wondered, did he just leave his wallet in his car? Did he forget an appointment and had to rush out? We eventually concluded that while everything pointed at theft, there actually was no real evidence that he was guilty, beyond a reasonable doubt. We found him not-guilty.
After the verdict was read and the defendant released, the judge asked us to come back in his chamber to debreif. He asked us point blank, why had we found him not-guilty. Silence. I piped up, ‘there was no real evidence against him. Every time the prosecutor tried to add something, there was an objection, sidebar, and it stopped. There was no evidence.’ The judge understood. Turned out that the prosecutor got the case that morning and since none of the evidence was ever disclosed to the defense, it was inadmissible. What sucks, this kid had a rap sheet a mile long.
As much as his innocence may be a travesty, I am proud of the fact that I made it clear to the government that due process and the rule of law is more important to our judicial system than just getting the bad guy at whatever cost. We all deserve that level of justice. That is what originalism is about. While short-cuts today seem ok, the Founders would have been purists. They know that you actually can die of a thousand cuts. You can’t evolve perspectives on how you enforce the laws. Just ask people in 3rd world countries what life is like when justice is flexible. When you have one original standard, it makes it clear how to stay true to it.