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"At the establishment of our constitutions, the judiciary bodies were supposed to be the most helpless and harmless members of the government. Experience, however, soon showed in what way they were to become the most dangerous; that the insufficiency of the means provided for their removal gave them a freehold and irresponsibility in office; that their decisions, seeming to concern individual suitors only, pass silent and unheeded by the public at large; that these decisions, nevertheless, become law by precedent, sapping, by little and little, the foundations of the constitution, and working its change by construction, before any one has perceived that that invisible and helpless worm has been busily employed in consuming its substance. In truth, man is not made to be trusted for life, if secured against all liability to account." --Thomas Jefferson, letter to Monsieur A. Coray, Oct 31, 1823
It sounds like Thomas Jefferson was against activist judges in 1823. So is Supreme Court Justice Antonin Scalia, who was interviewed by Lesley Stahl of CBS on 60 Minutes. Scalia also doesn't care for the phrase "living Constitution," preferring instead the concept of "originalism", which is the interpretation of the Constitution as written and intended by those who wrote it.
Scalia supplies the reasoning:
"It is an enduring Constitution that I want to defend," [Scalia] says.
"But what you're saying is, let's try to figure out the mindset of people back 200 years ago? Right?" Stahl asks.
"Well, it isn't the mindset. It's what did the words mean to the people who ratified the Bill of Rights or who ratified the Constitution," Scalia says.
"As opposed to what people today think it means," Stahl asks.
"As opposed to what people today would like," Scalia says.
"But you do admit that values change? We do adapt. We move," Stahl asks.
"That's fine. And so do laws change. Because values change, legislatures abolish the death penalty, permit same-sex marriage if they want, abolish laws against homosexual conduct. That's how the change in a society occurs. Society doesn't change through a Constitution," Scalia argues.
He's on a mission as an evangelist for originalism, at home and around the world.
For example, he visited the Oxford Union in England.
"Sometimes people come up to me and inquire, 'Justice Scalia, when did you first become an originalist?' As though it's some weird affliction, you know, 'When did you start eating human flesh?'" Scalia told students, who replied with laughter.
They may be laughing, but in the U.S. Scalia is a polarizing figure who invites protestors and picketers. There haven't been many Supreme Court justices who become this much of a lightening rod.
"I’m surprised at how many people really, really hate you. These are some things we've been told: 'He’s evil.' 'He's a Neanderthal.' 'He’s going to drag us back to 1789.' They're threatened by what you represent and what you believe in," Stahl remarks.
"These are people that don't understand what my interpretive philosophy is. I'm not saying no progress. I'm saying we should progress democratically," Scalia says.
Back at the Oxford Union, Scalia told the students, "You think there ought to be a right to abortion? No problem. The Constitution says nothing about it. Create it the way most rights are created in a democratic society. Pass a law. And that law, unlike a Constitutional right to abortion created by a court can compromise. It can…I was going to say it can split the baby! I should not use… A Constitution is not meant to facilitate change. It is meant to impede change, to make it difficult to change."
The most important words in the above exchange were Scalia saying, "I'm saying we should progress democratically." The Supreme Court is not the lawmaking branch of government (or at least it shouldn't be). Laws regarding abortion and gay marriage should be decided by the people, not by 9 black robes. If the people want to amend the Constitution to reflect changing values, then they can amend it (with great care), but don't use the Supreme Court as an end run around the legislative process.
This should not be a conservative vs. liberal matter (even though it seems to be). This should be a matter of understanding the role of the Court and understanding what it's limitations are supposed to be.
Naturally, during the Scalia interview, the topic of the 2000 Bush v. Gore Supreme Court ruling came up.
"You wanna talk about Bush versus Gore. I perceive that," [Scalia] replied. "I and my court owe no apology whatever for Bush versus Gore. We did the right thing. So there!"
"People say that that decision was not based on judicial philosophy but on politics," Stahl asks.
"I say nonsense," Scalia says.
Was it political?
"Gee, I really don’t wanna get into - I mean this is - get over it. It's so old by now. The principal issue in the case, whether the scheme that the Florida Supreme Court had put together violated the federal Constitution, that wasn't even close. The vote was seven to two," Scalia says.
(CBS) Moreover, he says it was not the court that made this a judicial question.
"It was Al Gore who made it a judicial question. It was he who brought it into the Florida courts. We didn't go looking for trouble. It was he who said, 'I want this to be decided by the courts.' What are we supposed to say? 'Oh, not important enough,'" Scalia jokes.
"It ended up being a political decision" Stahl points out.
"Well you say that. I don't say that," Scalia replies.
"You don’t think it handed the election to George Bush?" Stahl asks.
"Well how does that make it a political decision?" Scalia asks.
"It decided the election," Stahl says.
"If that’s all you mean by it, yes," Scalia says.
"That’s all I mean by it," Stahl says.
"Oh, ok. I suppose it did. Although you should add to that that it would have come out the same way, no matter what," Scalia says.
Somehow, I don't think Democrats have gotten over it, but Scalia is correct, they should. There was only one decision to make, and the Court made the right one.
I don't always agree with Scalia. I think his logic on cruel and unusual punishment as pertaining to torture is, well, tortured. But I agree with Scalia more often than I do most of the other Supremes. Anyway, read the interview. At the very least you should find it interesting.