A prominent story in the news at the moment is the death of Supreme Court Justice Antonin Scalia and the process of appointing his successor.
The controversy is over whether President Obama should nominate his replacement or defer to the next President to make the selection, given how close we are to the next Presidential election. To my mind there’s no question at all, it is clear that it is the current sitting President who nominates Justices – there is no mention in the Constitution of elections having any relevance at all – and there’s no precedent for leaving a Supreme Court seat unfilled merely because it became vacant during an election year.
There are those from the conservative end of the political spectrum that concede that its Obama’s responsibility to name a replacement but who are calling for him to appoint an “originalist” like Scalia was – someone who sticks close to the original intent of the founders in interpreting the Constitution. Here too there is nothing in the Constitution nor is there any precedent requiring a nominee to be of similar ideological persuasion to the Justice he or she is replacing.
What’s relevant to us here is the contrast between the philosophy of originalism and that of living structure. While originalism emphasizes the “letter of the law” we are more sympathetic to the “spirit of the law”. Living structure springs from the very processes of evolution, from the emergence of something new that both transcends and includes what comes before it. It requires flexibility, agility, adaptation and sensitivity to unique circumstances and context, the very opposite of a “one size fits all” approach.
The foundation of any society hoping to spring from the principles of living structure will by necessity be one that rejects blind adherence to past rules and to rigidity in a myriad of domains, including the legal sphere.
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