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.
…
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.”
…
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.
That’s a very textualist view of constitutional interpretation, Mark. The right to abortion and sodomy, for example, come from an implied right to privacy–the Supreme court has seen a right to privacy in the constitution for much of the last century.
Denying states the right to execute minors, on the other hand, was a direct reading of the constitution: the admonishment against cruel and unusual punishment (the argument is that standards have changed over the years and nowadays the state killing someone who’s 17 is cruel and unusual).
My point is that there are many theories of constitutional interpretation, and absolutism and original intent and the like are just one of a few different views (such as judicial restraint, or restraining the judiciary when it comes to commerce but being harsh on a law when it restrains individual rights). The courts have a responsibility to review the legislature, and the constitution is an imperfect document anyway. Narrowminded textualism is Scalia’s preference, not everyone else’s. Abortion laws and sodomy laws are well within the Supreme Court’s domain if there is confusion in the lower courts about whether the laws are in conflict with the constitution.
Abortion == privacy is a huge stretch, but it doesn’t matter, because there is no explicit right to privacy. You say that it is implied, and that the Supreme Court has recognized, it, but that doesn’t mean that it is in the Constitution. It isn’t.
Why has execution of minors suddenly become cruel? It is not a new concept… if it were cruel, why wasn’t such cruelty challenged before it became “usual”? Capital punishment has arguably become more humane in the last few years. We don’t hang people, and the electric chair is giving way to the numb death of lethal injection.
Narrowminded textualism is the only method of interpretation that limits judges. If given freedom to invent rights not guaranteed by the Constitution, where does that stop? If you can cook up a right to privacy, you can use that to do just about anything.
Yeah, the courts have a responsibility to review the legislature, but they cannot do so only based on personal politics. Their job is to see if a law conflicts with the Constitution. With abortion, for example, there is nothing in the Constitution to guarantee it as a right, nor is there anything to deny it as a possibility. The Constitution is silent, so the legislature can say what they like on the matter. But now that abortion has been deemed a “right,” the legislature can have no say. The will of the people is silenced because at least 5 out of 9 guys in black robes decided abortion should not only be legal, but it should be illegal to limit it.
Yes… and the Court’s response should be “this is not a constitutional matter, we won’t take the case.”
Now, I’m a libertarian, so I’m very much in favor of personal freedoms. If sodomy is your thing, go for it. Consenting adults, no harm to anyone else… have a blast. But as much as I think that, I can’t get around the fact that there is no “private sexual freedoms” amendment. Thus, I cannot claim that laws against private sexual freedoms are unconstitutional, even though I think they are wrong.
The constitution is a “living document” in this way: if you don’t like it, you can amend it. This was done to give women the right to vote. The answer isn’t to ignore the constitution, or to pretend it says something that it doesn’t.
So let’s make it perfect! If you give up on it, you’re only going to perpetuate a system in which courts can act without restriction, imposing their will based on “evolving standards,” or… what their Alphabits said that morning. You may like it when Justices ignore the Constitution and do something you think is right, but if you applaud a flagrant disregard for the Constitution, you waive any right to complain when the Constitution is ignored and you suffer as a consequence.
(Ir)relevant Distinctions…
They seem to be the order of the day. First, the leak by Central Intelligence Agency analyst Mary McCarthy that led to her being fired. If it doesn’t run afoul of whistleblower protection statutes, McCarthy’s dismissal seems pretty straightforward: s…
The 9th amendment says:
“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
Seems pretty trivial, and protected by the Constitution, to “cook up” the right to privacy.
No?