Scalia on Judicial Legislation
You should probably watch this speech by U.S. Supreme Court Justice Antonin Scalia about constitutional interpretation. It may be the most important speech on the topic ever.
Speaking to an audience of about 50 people at the Woodrow Wilson Center in Washington Monday, Supreme Court Justice Antonin Scalia denounced the idea that the Constitution is “a living document” in which judges can find new meanings that were not intended by those who wrote it.
“The Constitution is not a living organism, for Pete’s sake, it is legal document, and like all legal documents, it says some things and doesn’t say others,” he said.
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Scalia explained his dissent from the court’s decision on March 1 to ban the execution of those under age 18. The five-justice majority said such executions violated the Eighth Amendment.
“What was ‘cruel and unusual’ and unconstitutional in 1791 remains that today. Executing someone under 18 was not unconstitutional in 1791, so it is not unconstitutional today. Now, it may be very stupid, it may be a very bad idea, just as notching ears, which was a punishment in 1791, is a very bad idea. But the people can … eliminate those stupidities if and when they want. … All you need is a legislature and the ballot box.”
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He said Americans also can create a right to abortion or can legitimize homosexual sodomy democratically, through their state legislatures and Congress, if they want to do so.
The Supreme Court’s job is to interpret the Constitution. If a state wants to ban guns, and the case gets to the Supreme Court, it is their job to say “Aha! The Second Amendment says that people have a right to bear arms.” If the FCC wants to regulate content on cable television, it is the Supreme Court’s job to say “Wait! Freedom of speech.”
But if something like abortion or sodomy comes up, the court has no business having any say. There is no “right to an abortion.” It was invented by the Court because of personal biases. There is no constitutional opinion of sodomy. So guess what: you’re on your own! Such matters shouldn’t be decided by the Supreme Court. They have no basis for deciding such things except for personal political reasons. By giving the Court the power to create law or strike down law without basing those decisions on interpretation of the Constitution is tantamount to declaring the Supreme Court the supreme ruler of the United States. The Supreme Court can create rights, like the “right” to abortion. The Supreme Court can deny rights, like denying states the right to execute criminals. The Supreme Court can even interfere with democratic elections, as the Florida Supreme Court did back in 2000. It can do all of these things independent of Constitutional analysis. The Court has become something that was not intended.
