Tuesday, February 14, 2006

You, You Sonofabitch, You! You're Supposed To STAND For Somethin'! You're Supposed To Protect People!

Nice to know legal scholarship ended in 1787:
People who believe the Constitution would break if it didn't change with society are "idiots," U.S. Supreme Court Justice Antonin Scalia says.

In a speech Monday sponsored by the conservative Federalist Society, Scalia defended his long-held belief in sticking to the plain text of the Constitution "as it was originally written and intended."

"Scalia does have a philosophy, it's called originalism," he said. "That's what prevents him from doing the things he would like to do," he told more than 100 politicians and lawyers from this U.S. island territory.

According to his judicial philosophy, he said, there can be no room for personal, political or religious beliefs.

Scalia criticized those who believe in what he called the "living Constitution."

"That's the argument of flexibility and it goes something like this: The Constitution is over 200 years old and societies change. It has to change with society, like a living organism, or it will become brittle and break."

"But you would have to be an idiot to believe that," Scalia said. "The Constitution is not a living organism, it is a legal document. It says something and doesn't say other things."

Proponents of the living constitution want matters to be decided "not by the people, but by the justices of the Supreme Court."

"They are not looking for legal flexibility, they are looking for rigidity, whether it's the right to abortion or the right to homosexual activity, they want that right to be embedded from coast to coast and to be unchangeable," he said.
Y'know, there was a time I could've sworn that, no matter what my opinion of his decisions, I at least agreed with the premise that Justice Scalia was a smart man. There goes that.

First: He's got the third-person thing going, as if he was a pro wrestler or Bob Dole.

Second: As someone in the Yahoo News Message Boards pointed out, the Constitution may be a legal document, but it's an amendable legal document. You may remember some of those Amendments -- freeing the slaves, giving women the right to vote, and such. Unless, of course, Justice Scalia would like to back to those times, in which case he should probably warn Justice Snerd. Strictly out of fairness, of course.

Third: Let's look at that "flexibility/rigidity" argument. What he's basically saying is that, under the guise of wanting to adapt the laws of the land for the times we live in, the "living Constitution" supporters actually want the Supreme Court, not the people, to have certain laws set in stone so that they cannot be changed. And this is a bad thing.

There's something to that, y'know. For instance, in a post-9/11 world, it just makes more sense for the vice-president to have the right to shoot someone in the face. In a less satirical vein, who needs popular voting to determine the presidency? Oh, wait, that was done by the Supreme Court, wasn't it, Antonin? And you voted in the majority on that case.


Try this, Justice Scalia: One of the things the Constitution is supposed to prevent is "the tyranny of the majority". That's the idea that popular support for something shouldn't be allowed to oppress those who don't subscribe to it. And, in particular, it's meant to apply to things like the issues you invoke -- abortions, gay marriage -- issues where reasonable people disagree as to whether or not what's being discussed is evil.

You may remember the First Amendment: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." So that, for instance, people who don't believe in a particular god don't have to endure that god's faith being promoted ahead of other faiths, or no faith, in public schools.

Now try another one -- Amendment Nine: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

That means that, if the Constitution doesn't specifically grant a particular right, and it doesn't specifically outlaw that right, it's probably okay.

It may have occurred to you, Justice Scalia -- or perhaps it hasn't -- that virtually all of the most hotly contested rights cases these days are, effectively, issues of personal morality, where one group of people is trying to -- let's see, how did you put it above? "They are not looking for legal flexibility, they are looking for rigidity, whether it's the right to abortion or the right to homosexual activity, they want that right to be embedded from coast to coast and to be unchangeable."

Only you're siding with the ones who want the particular rigidity to be outlawing the right to abortion and the right to homosexual activity.

How then, are you different from your political opponents? As far as I can tell, in only two ways.

One, you want an outcome that limits people's rights. Hell of a thing, Mister Of The People By The People For The People.

Two, you say publicly that "there can be no room for personal, political or religious beliefs". But your judgements, indeed your entire political philosophy, shows otherwise.

Which makes you a stinking hypocrite.

Mr. Smith, y'may want to take a gander at Ed Brayton's Dispatches from the Culture Wars, if you don't read it already. He posts on a wide variety of topics, including legal ones, and has a post up about the Scalia speech which lets you know that the man's hypocrisy is worse than you thought.

In it he refers to a previous post of his about Constitutional originalism, including this quote from Scalia:

"I hasten to confess that in a crunch I may prove a faint-hearted originalist. I cannot imagine myself, any more than any other federal judge, upholding a statute that imposes the punishment of flogging."

Which means that, when he feels it necessary, "he is willing simply to abandon originalist results that he and most others would find too onerous by some unstated criteria," according to a quote from Mr. Brayton.
I've always liked this quotation from Thomas Jefferson, which appears on the Jefferson Monument:

"I am certainly not an advocate for frequent changes in laws and constitutions. But laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors."
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