It should be such an obvious question. The elephant in the room is the Supreme Court's corruption of the Constitution.
Yet the Senators ask softball questions that allow the nominee to hide behind judicial impartiality and originalism, while the legal experts write columns to instruct us muggles (lacking law school indoctrination) on the complexities of constitutional interpretation. They are so eager to get into their favored topic of originalism, they omit to review the context for that discussion.
It should really begin with the legal concepts we can all agree on. Such as: the law must apply equally to all persons. This is not only a good idea for society, but the Constitution actually does require it.
There is the presumption that this legal equality is in fact possible. But is it, even when the people to which the law applies are physically unequal? For example, can the law apply equally to a child and an adult?
Of course not. Laws that say you must be 17 to obtain a driver's license or 21 to purchase alcoholic beverages are unequal in their application— blatant discrimination on the basis of age. But, the practical reasons for this are so well accepted that it seems churlish to point out that the principle of equal application to all persons is clearly being violated.
Other examples are easily found. Does the law apply equally to the healthy and the disabled or afflicted? It discriminates agains blind people by denying them driver's licenses. It discriminates against healthy people in requiring them to pay health insurance premiums to cover the exorbitant medical costs of the unhealthy.
Or does it apply equally to male and female? More particularly, for cases involving the origin of life, can the law apply equally to persons capable of impregnating and persons susceptible to being impregnated?
The principle of equality in the law is necessarily compromised when the persons are physically unequal. And even beyond physical inequalities, can the law apply equally to persons of diverse religious beliefs and practices? Or can it equally affect the rich and the poor? (The oath of office for judges requires affirmation of only this last proposition— an acknowledgment of its unique difficulty. )
There is no doubt that the questions that arise in particular cases, of how legal equality is achieved between unequal persons, are hard. But the premise of constitutional law is that the answers to these questions will be obtained by examining the Constitution under some doctrine of interpretation.
The doctrine of "originalism" or "original intent" currently seems to be the gold standard for interpretation. It holds that the answers must be found in historical study that examines the intent —the minds— of the lawgivers who wrote the Constitution.
But in most instances, there is no record that these lawgivers ever considered the questions that come before the Court today. Their intent on these issues is simply nonexistent: they had no intent.
Other doctrines of interpretation do no better. The answers are simply not in the Constitution, so finding them by "interpreting" the Constitution has as much validity as finding them by interpreting tea leaves, goat entrails, or planetary movements —methods used effectively by the sages of yore. (And that the sages of the Court follow this tradition attests to their true conservatism.)
With a few exceptions, Justices have not admitted to this obvious truth. The reason, of course, is power. If the Justices concede that their ruling is determined by their own sense of justice, equity, compatibility with precedents, feelings of empathy, ideological views of society, etc., their opinion might be judicially valid, but it may not be used to overrule laws passed by Congress.
If, on the other hand, the Supreme Court can lay claim to a constitutional determination of how the law must apply equally to unequal persons —that is, if it claims it can see what the Constitution specifies— it takes the upper hand in creating law, and it may overrule Congress.
In fact, the question of constitutionality comes up only when a court is asked to overrule law created by the representatives of the people.
In order to advance their agendas, special interests who cannot attract the support of a majority must necessarily turn to antidemocratic methods. Seeing the Supreme Court's power to overrule the legislatures, they will conjure distortions of the Constitution that will protect their interests, and then ask the Supreme Court to validate them. By accepting such arguments, the Court corrupts the Constitution. But, it increases its power.
It is beyond dispute that over the years, the Supreme Court has been increasing its power over the legislatures, and doing so by expanding the domain of the Constitution. And the process is ongoing, with no sign of abating.
It is also true —and ought to be beyond dispute— that this process corrupts the Constitution, the English language, the balance of powers, and the Court itself.
Consider, for example, corporations. Of course, they should not be considered in any discussion of constitutional law, because they are not mentioned anywhere in the Constitution. Yet the Supreme Court says they are protected by the Constitution.
How is this possible? By means of an assertion by the Supreme Court, that the word person in the Constitution includes corporations. The claim is, simply, that a corporation is a person. And then the clause that says all "persons" must have equal protection of the law comes to means that corporations must be legally equivalent to human beings.
And the Supreme Court claims that it is the Constitution that says so— so legislatures are rendered powerless to enact any law that does not treat corporations equally to human persons.
Is this claim made through the doctrine of original intent? That is impossible. It is true that some law, relating to business activities that can be undertaken by either corporations or individuals, has used the word person to mean either one. But those cases were limited to business law, and the bills have always included a specific notice that that is how the word person is being used in that document.
Of course, the Constitution includes no such notice. And its text does not support that meaning at all. Even in the Fourteenth Amendment, which guarantees all persons "equal protection of the law," persons are said to be "born or naturalized," to be citizens, to have "life, liberty," to be "Senators or Representatives," to be "within the jurisdiction" of a state, and to be counted for purposes of representation. The word corporation could not meaningfully be used in any of these contexts, so the contexts could not support the word person either, if it were to include corporations.
And corporations are nowhere mentioned in the literature, such as the Federalist Papers, that explained, justified and advocated ratification of the Constitution.
The "principle" that a corporation is a person cannot be found in the Constitution under any doctrine of interpretation. It is not a principle, nor an interpretation —it is a false, deceptive, devious, mendacious, and fraudulent assertion. And it is absurd.
A corporation is not a person. It doesn't have a body. It has no parents, no family. It can't marry nor divorce; it has no sexuality nor capability of sexual relations. It can't bear, nor sire, nor even adopt a child. It has no need for health care or health insurance. It doesn't retire, has no need for Social Security, and doesn't die. It doesn't go to school or hold a job; it has no use for educational institutions, workplace protections or unions. As punishment for crime, it cannot be jailed nor executed. It can't hold office nor vote nor serve nor be impressed into service in the armed forces or on a jury.
And it cannot be a citizen, neither by birth nor naturalization. This alone should prove the absurdity of the notion that it has legal equality with human persons.
And it is owned: it can be bought and sold. If it were a person, it would be a person owned and controlled by its owners —a slave. That is unconstitutional: the Thirteenth Amendment bans slavery.
Furthermore, having no physical being, it doesn't reside anywhere. In fact, it isn't anywhere. It can't be in any state.
Yet it is the Supreme Court's settled doctrine that the Constitution applies to two types of persons: one, physical and mortal, created by the Almighty; and another, an abstraction, immortal, existing only in the law, and created by the legislatures. And that the Constitution requires that all law must apply equally to both!
One might well ask, how and why did such an absurdity become constitutional law —the highest law in the land? Corporate interests wanted it, for protection against regulation by the legislatures. It entered the law in an announcement by a Chief Justice, and was thereafter cited as a precedent. It was never justified in a reasoned Court opinion. In fact, it cannot be justified, because it is profoundly illogical.
But, it increases the power of the Supreme Court. Now, all questions (and there will be quite a few) of whether the law applies equally to these two types of persons, will finally be resolved by the Supreme Court, because they are constitutional questions.
Then isn't the Supreme Court giving itself a lot of work to sort out all of the complexities and contradictions in order to achieve legal equality? Not at all. The lower courts will have to deal with them. The Supreme Court itself selects the cases it will hear, and it will cherry-pick the cases and issues in which it wishes to apply the principle, and —since the principle is a sham— will ignore it in all other cases.
And the Justices, being independent, cannot be compelled to explain or take responsibility for any of the Court's decisions. In spite of all the propaganda about checks and balances, the Supreme Court was designed to be independent: there are no checks on it. Also, consistent with independence, it was not given any constitutional power over the other branches. But that power —without limit— it has taken for itself, merely by using the word constitutional.
In this season of advising and consenting to the President's Supreme Court nominee, the most the Senate can do is to remind the prospective Justice of the corrupt power that the Court has, and hope that he will remember for the rest of his life not to expand it too much nor to use it too excessively.
Further Reading: Your Ignorance Is Our Strength