Justice Antonin Scalia's White, Male Legacy

Supreme Court Justice Antonin Scalia's passing is a shock to die-hard conservatives for good reason. He was the bastion and spokesperson of the originalist interpretation of the Constitution, which meant any law had to divine the original intentions of the slave-owning, landowning, founding white male fathers of our nation, which excluded women and non-landowning males (and slaves, of course) from representation.

So that meant turning the clock back at least one century to a time when the white male patriarchy still ruled, which was a much less democratic time. Scalia's most noted opinion was to expand Second Amendment gun owners' rights, which 'protected' every citizen's right to own a gun almost without restriction, because the Second Amendment right to bear arms also protected an individual's right of self-defense.

The result has been record gun sales and gun deaths (30,000+ per year), as well as mass shootings, and no limit to the purchase of military style assault rifles with unlimited magazines. Another little-noted result was the higher incidence of gun violence in households with guns, according to the Law Center to Prevent Gun Violence.

In fact, "Research published in the New England Journal of Medicine found that living in a home where guns are kept increased an individual's risk of death by homicide by between 40 and 170 percent," said the Law Center. "Another study published in the American Journal of Epidemiology similarly found that "persons with guns in the home were at greater risk of dying from a homicide in the home than those without guns in the home." This study determined that the presence of guns in the home increased an individual's risk of death by homicide by 90 percent.

Whereas other developed countries without that Second Amendment 'right', such as Australia, do not allow the purchase of a gun for self-defense to be a sufficient reason for owning such a weapon. And Australia has not had a single incidence of mass shootings since 1996 and the passing of its gun control legislation.

But the Second Amendment ruling pales to Justice Scalia's opinion that gave the 2000 presidential election to GW Bush, in the Supreme Court's Bush v. Gore ruling, which overturned the Florida Supreme Court's decision to extend the vote re-count past the December 12 deadline, until a full recount had been done.

What was the basis for Scalia's majority opinion?

"The counting of votes that are of questionable legality does in my view threaten irreparable harm to petitioner Bush, and to the country, by casting a cloud upon what he claims to be the legitimacy of his election. Count first, and rule upon legality afterwards, is not a recipe for producing election results that have the public acceptance democratic stability requires."

The four dissenting judges disputed Scalia's claim:

"Although we may never know with complete certainty the identity of the winner of this year's Presidential election, the identity of the loser is perfectly clear. It is the Nation's confidence in the judge as an impartial guardian of the rule of law."

The consequences to our democratic system were even worse. By basically interfering with Florida's right to choose its Electoral College delegates, GW Bush became president. And his eight year term included the attack on 9/11, two wars, tax cuts that created the largest federal budget deficit in history, as well as two recessions, including the Great Recession.

Justice Sandra Day O'Connor unfortunately only later in interviews hinted that she regretted casting the deciding vote with the 5-4 conservative majority. The damage to democratic values have only been compounded with more recent rulings of the 'Scalia majority', such as gutting the Voting Rights Act that makes it more difficult for minorities and immigrants to vote, and Citizens United v. FEC (Federal Election Commission).

The Citizens United ruling overturned the 2002 Bipartisan Campaign Reform Act (commonly known as the McCain-Feingold Act or "BCRA"). Section 203 of BCRA had defined an "electioneering communication" as a broadcast, cable, or satellite communication that mentioned a candidate within 60 days of a general election or 30 days of a primary, and prohibited such expenditures by corporations and unions.

Instead, the Scalia majority held that the First Amendment right to freedom of expression should be expanded to allow unlimited election spending by individuals as well as for profit and non-profit corporations and institutions.

There is probably no other individual in recent history that has done as much to protect the rights of the wealthiest and most privileged.

Harlan Green © 2016

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