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Here's a link to a speech Justice Scalia gave on constitutional interpretation a few days ago.
It's long, but well worth reading in my opinion. Really made me think about the way the role of the judiciary has changed in America in the past few decades. Also increased my respect for Scalia a great deal; the man is extremely intelligent.
A couple choice quotes:
Good stuff.
It's long, but well worth reading in my opinion. Really made me think about the way the role of the judiciary has changed in America in the past few decades. Also increased my respect for Scalia a great deal; the man is extremely intelligent.
A couple choice quotes:
And if you think that the aficionados of the Living Constitution want to bring you flexibility, think again. My Constitution is a very flexible Constitution. You think the death penalty is a good idea: persuade your fellow citizens and adopt it. You think itfs a bad idea: persuade them the other way and eliminate it. You want a right to abortion: create it the way most rights are created in a democratic society. Persuade your fellow citizens itfs a good idea, and enact it. You want the opposite, persuade them the other way. Thatfs flexibility. But to read either result into the Constitution is not to produce flexibility, it is to produce what a constitution is designed to produce: rigidity.
And finally, this is what I will conclude with, although it is not on a happy note, the worse thing about the Living Constitution is that it will destroy the Constitution. You heard in the introduction that I was confirmed, close to nineteen years ago now, by a vote of ninety-eight to nothing. The two missing were Barry Goldwater and Jake Garnes, so make it a hundred. I was known at that time to be, in my political and social views, fairly conservative. But still, I was known to be a good lawyer, an honest man, somebody who could read a text and give it its fair meaning, had judicial impartiality and so forth. And so I was unanimously confirmed.
Today, barely twenty years later, it is difficult to get someone confirmed to the Court of Appeals. What has happened? The American people have figured out what is going on. If we are selecting lawyers, if we are selecting people to read a text and give it the fair meaning it had when it was adopted, yes, the most important thing to do is to get a good lawyer. If on the other hand, wefre picking people to draw out of their own conscience and experience, a new constitution, with all sorts of new values to govern our society, then we should not look principally for good lawyers. We should look principally for people who agree with us, the majority, as to whether there ought to be this right, that right, and the other right. We want to pick people that would write the new constitution that we would want.
And that is why you hear in the discourse on this subject, people talking about moderate, we want moderate judges. What is a moderate interpretation of the text? Half way between what it really means and what youfd like it to mean? There is no such thing as a moderate interpretation of the text. Would you ask a lawyer, gDraw me a moderate contract?h The only way the word has any meaning is if you are looking for someone to write a law, to write a constitution, rather than to interpret one. The moderate judge is the one who will devise the new constitution that most people would approve of. So for example, we had a suicide case some terms ago, and the Court refused to hold that there is a constitutional right to assisted suicide. We said, gWefre not yet ready to say that. Stay tuned, in a few years, the time may come, but wefre not yet ready.h And that was a moderate decision, because I think most people would not want ac If we had gone, looked into that and created a national right to assisted suicide that would have been an immoderate and extremist decision.
I think the very terminology suggests where we have arrived: at the point of selecting people to write a constitution, rather than people to give us the fair meaning of one that has been democratically adopted. And when that happens, when the Senate interrogates nominees to the Supreme Court, or to the lower courts, you know, gJudge so and so, do you think there is a right to this in the Constitution? You donft?! Well my constituentsf think there ought to be, and Ifm not going to appoint to the court someone who is not going to find that.h When we are in that mode, you realize, we have rendered the Constitution useless, because the Constitution will mean what the majority wants it to mean. The senators are representing the majority. And they will be selecting justices who will devise a constitution that the majority wants.
And that of course, deprives the Constitution of its principle utility. The Bill of Rights is devised to protect you and me against, who do you think? The majority. My most important function on the Supreme Court is to tell the majority to take a walk. And the notion that the justices ought to be selected because of the positions that they will take that are favored by the majority is a recipe for destruction of what we have had for two-hundred years.
Today, barely twenty years later, it is difficult to get someone confirmed to the Court of Appeals. What has happened? The American people have figured out what is going on. If we are selecting lawyers, if we are selecting people to read a text and give it the fair meaning it had when it was adopted, yes, the most important thing to do is to get a good lawyer. If on the other hand, wefre picking people to draw out of their own conscience and experience, a new constitution, with all sorts of new values to govern our society, then we should not look principally for good lawyers. We should look principally for people who agree with us, the majority, as to whether there ought to be this right, that right, and the other right. We want to pick people that would write the new constitution that we would want.
And that is why you hear in the discourse on this subject, people talking about moderate, we want moderate judges. What is a moderate interpretation of the text? Half way between what it really means and what youfd like it to mean? There is no such thing as a moderate interpretation of the text. Would you ask a lawyer, gDraw me a moderate contract?h The only way the word has any meaning is if you are looking for someone to write a law, to write a constitution, rather than to interpret one. The moderate judge is the one who will devise the new constitution that most people would approve of. So for example, we had a suicide case some terms ago, and the Court refused to hold that there is a constitutional right to assisted suicide. We said, gWefre not yet ready to say that. Stay tuned, in a few years, the time may come, but wefre not yet ready.h And that was a moderate decision, because I think most people would not want ac If we had gone, looked into that and created a national right to assisted suicide that would have been an immoderate and extremist decision.
I think the very terminology suggests where we have arrived: at the point of selecting people to write a constitution, rather than people to give us the fair meaning of one that has been democratically adopted. And when that happens, when the Senate interrogates nominees to the Supreme Court, or to the lower courts, you know, gJudge so and so, do you think there is a right to this in the Constitution? You donft?! Well my constituentsf think there ought to be, and Ifm not going to appoint to the court someone who is not going to find that.h When we are in that mode, you realize, we have rendered the Constitution useless, because the Constitution will mean what the majority wants it to mean. The senators are representing the majority. And they will be selecting justices who will devise a constitution that the majority wants.
And that of course, deprives the Constitution of its principle utility. The Bill of Rights is devised to protect you and me against, who do you think? The majority. My most important function on the Supreme Court is to tell the majority to take a walk. And the notion that the justices ought to be selected because of the positions that they will take that are favored by the majority is a recipe for destruction of what we have had for two-hundred years.
Good stuff.
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