One of the legacies left by Supreme Court Justice Antonin Scalia is the notion that the Constitution should be interpreted by what the words in it conjured up in the minds of those who lived when the Constitution was enacted.  He referred to this evaluative process as “textual originalism.”  Such an evaluative process, while intellectual in scope and pursuit, nevertheless ultimately assures that important issues of the day arrive at the doorstep of justice ripped and torn into fragments that reflect little more than the personal biases of the majority of those judges who did the interpreting.  In the vernacular of those with street smarts, “garbage in, garbage out.” 

This is an essay in logic, not in law.  That is not an apology.  Of the two, logic embraces the superior form of reasoning.  It is more narrowly defined; it contains rules that no intelligent person would dare violate; it allows little room for interpretation or equivocation; it can detect false reasoning; and it will not let stand a false conclusion.  I am not a legal scholar; still I am not at all familiar with any part of law that assures an outcome that could withstand the rules of logic.  I will elaborate on that position later.  As to his position, Justice Scalia said the Constitution is “dead, dead, dead,” rather than being a “living document.”  Curiously, Scalia seems to have been somewhat contemptuous of the notion of justice, seeking instead decisions that supported the words in a dead document.  Such a point of view is not without its own avenues of sinister inquiry while navigating the disparate minds of those in search of meaning.  It assumes or presumes that the words and the contents of the Constitution embody permanent truths—yesterday, today, and tomorrow—and that they are discernible by those with sound judgment.  It gives superior credence to standards of long ago and to their interpreters, with little respect for those legislators who passed the law in question, or for those who must abide by their decisions under the stern guise of “the rule of law.”  

Bias is at the core of this inquiry.  It is not surprising to this observer that literally thousands of controlled investigations into the subject of bias all conclude that we are all biased in our thinking, whether we know it or not, whether we try to avoid it or not, and whether we like it or not.  Bias is a fact that can be proved by mathematics and by probability theory.  Wikipedia lists 20 categories of bias that are implicit in our thinking, while researcher David Sackett lists 56 different forms of bias that investigators can and do fall victim to in their research efforts.[1]

Is this a subject for study in law schools?  It should be.  For example, is it possible for 9 separate justices, acting in the best interests of those to whom they are accountable—and in accordance with the Constitution—would arrive consistently in 5 to 4 decisions, with the same justices in each group, on various contentious issues, 97 percent of the time?  The probability of that rate of collective disparity is calculable by any 3^rd grader with a calculator.  It quickly soars into the millions to one that confirms bias is the operative factor in such decisions, not fairness and not justice.  It is also disappointing that nearly all justices would deny that they are either biased, or that their decisions are more dependent on bias than on textual originalism.  Bias is the heavy burden that sinks the premise of textual originalism into a quagmire of intellectual dishonesty. 

But if justice is the objective, what, then, are the components of justice?  I believe they are:  First, that we each have equal standing before the law (not equality of outcomes).  In practice this component means that a single citizen has equal standing on an issue in which the richest person or an entire industry is on the opposite side.  Power and money should never be favored over the validity of the arguments that are put forward.  Second, equal opportunity must never be jeopardized.  A decision should never favor anyone based on race, religion, gender, wealth, power, or any other attribute.  Third, freedom is a paramount component of justice.  What good is served or promoted when we lose freedom of choice to a majority decision from 5 biased justices?  Where is the honor, the integrity, the sense of purpose, our loyalty to our heritage, to ourselves and to our posterity with such decisions?  How long can we remain committed to the “rule of law” when decisions in semantics trample on freedom, our basic purpose for existing?  Fourth, we each have the right to “find our calling,” or to “pursue our dreams,” or to develop our talents, or to just find a niche that is suitable to us.  Freedom means more than freedom from tyrannical deciders; it also means freedom to find our selves.  Anything less is slavery.

These four principles are far easier to define than are the hazy definitions of terms that anyone might infer existed c.1789.   I would ask all Supreme Court justices, or any body of scholars which of the two decisional paths is more likely to lead to a just outcome today?  Alternatively, which is easier to define:  a just outcome that respects those affected today, or one that tries to tap into a pool of semantic interpretations from the distant past?

The only logical alternative to a dead Constitution is a living Constitution.  It is one that meets our needs, not the needs of those who are dead and gone.  It is one that can address intelligently and coherently issues—not of settled law—but of facts and settled science. It is one that respects history, but that relies on our present state of knowledge and as far into the future that present knowledge portends. It is one that relies on a small number of definable concepts rather than on a wide array of past concepts as modified again and again over the years that are further weighted down by a history of argumentation that reflect more biases than sound judgments.  And most importantly, it is a set of principles that nearly all citizens can understand and relate to.  We need only ask “Does this decision to this issue supports these four concepts:  equality, life, liberty, and the pursuit of happiness?”

Could we not amend the Constitution to include this requirement for its interpretation?   

This Constitution and all interpretations emanating from it are subject to review by citizens in good standing, first, by the four principles in our Declaration of Independence; namely, to equality, life, liberty, and the pursuit of happiness.  Further, each of these concepts must include and embrace the prevailing feelings and demands of the citizens to whom they apply.  

Such an amendment would encompass the wisdom of Thomas Jefferson, the legal mind of Oliver Wendell Holmes, and the incisive logic of William of Occam.[2]  We might also confirm and periodically rotate 9 citizens to sit in judgment of all Supreme Court decisions to determine the extent to which their legal decisions support or violate these principles of justice.  Citizens would thus have the final word about which decisions are just and which are not.