Skip to comments.Scalia says judges shouldn't change Constitution
Posted on 05/02/2007 1:30:21 PM PDT by presidio9
If Americans want to secure new constitutional rights, they should look to the legislative branch, not the Supreme Court, Justice Antonin Scalia said last week.
If you want new rights, create them by statute, Scalia said April 27 in a speech at the University of Delaware. If you want new constitutional rights, then you need to amend the Constitution.
Defending his originalist approach to interpreting what the framers of the Constitution intended, Scalia said too many Americans, from the man in the street to academics and judges, mistakenly consider it to be a document that must evolve to meet the changing norms of society.
The professorate, the bench and even the American people have all been seduced into believing in, and I hate the term, a living Constitution, he said.
The Constitution is not a living organism, Scalia added. Its a legal document.
Scalia said the Constitution was properly revered by many as a rock to which society was safely moored before changes began occurring under former Chief Justice Earl Warren.
Mocking the idea that the prohibition against cruel and unusual punishment should be interpreted through evolving standards of decency that mark the progress of a maturing society, Scalia warned that the flexibility that some desire in interpreting the Constitution could have unintended consequences.
You cant assume that it will always create new rights and not eliminate old ones, he said.
Its hard to give a right to one person without affecting somebody else, Scalia added, noting that a womans right to an abortion means the end of life for a fetus.
Outside the theater where Scalia spoke, handfuls of those on either side of the abortion debate staged silent demonstrations. They were joined by two individuals wearing orange jumpsuits and black hoods protesting the treatment of detainees at the Guantanamo Bay military base in Cuba.
Among those in the audience was Scalias son Matthew, who is an instructor in University of Delawares Department of Military Science.
Scalia also noted that the originalism that guides him and fellow conservative Justice Clarence Thomas does not always mean a conservative outcome.
Originalism is a two-edge sword, he said, noting that he cast the deciding vote in a ruling upholding flag-burning as a right of expression guaranteed by the First Amendment.
Scalia said the idea that Constitution should be subject to constant change is illegitimate, especially because there are no criteria for determining how it should change, and because the task is left to unelected judges who have no right to decide, for example, what evolving standards of decency are.
Even if it is true, the Court shouldnt be in the business. The Constitution should be amended across the street, Scalia said, referring to Congress.
Id rather the people rewrite the Constitution rather than nine aristocrats do it, but ideally, it should be neither one, he said.
Why is this even debatable?
But the left can’t get its agenda implemented through the representative branches of government... oh, what will they do?
Because Ruth Ginsburg said so.
One would think that this guy, of all people, would understand that new rights can't be created.
I'm with you. Universal Suffrage should cease immediately. Women elected Kerry, Gore, Clinton, and Dukakis.
Because people with unpopular ideas can't win that other way.
Government "creates" rights by statute? Wrong.
One would think that this guy, of all people, would understand that new rights can't be created.
Or that they don't need to be listed in the Constitution....
How can such an obviously intelligent man have so missed the point of the Ninth Amendment?
Stop the suffraging!
i stopped after if you want new rights amend the constitution...
i expect more from scalia... the constitution is not an enumeration of all our rights but a protection of all our rights, those that are not found within its pages are reserved to the people and or the states...
we are not limited to the only the rights in the BoR.
My argument whenever I run into a "living Constitution" believer is "Would you lease a car from a dealer who insisted that the lease contract was a 'living document' that could change on his whim?"
I caught a bit of an interview with Breyer on Fox (probably when his book came out) -- he was surprisingly (to me) forthright about his view that judges had the right and responsibility(!) to "adapt" the Constitution.
I didn't watch much of it . . . I couldn't!
Since the Constitution merely enumerates rights endowed to the People by their CREATOR...and a ‘Wall’ now separates the Constitution from any connection with the CREATOR...it seems that the “Constitution” was usurped some time ago (in the Sixties, starting with the activist Warren Court) and, really, is no longer applicable, meaningful, or even consequential to our lives today...
Would you want to play poker with someone who stated that the rules were “living”?
If we have a “living” Constitution, we have no Constitution.
It’s a contract with an amendment process.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.The Bill of Rights almost didn't pass exactly because of the fear of attitudes like Scalia's. Let's listen to James Madison:
It has been objected also against a Bill of Rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution.Unfortunately, Madison's protections against Scalia's view in the 9th Amendment appear not to have worked.
Scalia doesn’t seem to mind giving some wiggle room in the Constitution when it comes to the power of the federal government, but when a state wants to enforce its powers, or a person his rights, suddenly he (selectively) interprets it strictly. Just look at Gonzales v. Raich, where he completely ignored the ideas of state sovereignty and limited federal powers.
Thomas is, overall, becoming my favorite. And to think I didn’t like him at first.
All laws infringe on someone's rights in some way. The Constitution laid out some agreed upon basic rights which we (the government, the people) will work to favor for each other. Freedom of speech versus freedom from hearing "offensive" speech. The Constitution doesn't say our government can't search us or our home, but places rules on what the government needs to do in order to do so.
It's why "Justice" is shown holding a balance, because enforcement of all man made laws involve weighing opposing interests.
I can't decide whether Thomas got better, coming out of Scalia's shadow and into his own, or I just need to eat a big bunch of crow for my earlier broad criticism of him. A bit of both, I suppose.
BTW, it was FReepers who specifically pointed out some arguments from Thomas and helped me change my view. I love FR.
Uh HELLO !!! Shouldn’t? How about “judges CAN”T change the constitution”
Bingo! We have MANY rights, not just those listed in the Constitution. Basically, we have the right (liberty) to do what we want to do, as long as we respect the life rights and property of others. Too many conservatives don’t get this. It makes us look like authoritarians.
The Constitution is a living roll of toilet paper used by the left. Sick.
Good point. Since the Constitution forbids 'ex post facto laws', and any Judge never sees any case until it's 'ex post facto', then were a Judge to change the Constitution such a change would be ex post facto and, thus, ipso facto UN-Constitutional.
The only rational conclusion then, since some Judges HAVE changed the Constitution, is that the Constitution is no longer in force...null and void...entirely usurped from the People.
I trust that the Founding Fathers had a greater sense of national sovereignty and citizen rights than do the current self-interested, self-absorbed, self-serving elected and appointed.
The Constitution spells out the path to change. Not McCain’s CFR that tries to infringe legislatively to limit the First Amendment — in a way that benefits McCain and other incumbents by making certain free speech actions criminal offenses.
It is the responsibility of the citizenry to be ever vigilent and hold politicos' feet to the fire and maintain OUR rights as citizens. Too many politicos would gladly infringe on and erase those rights legislatively.
change "car lease" to "credit card"....most credit cards are variable rates...they change like the wind....a living contract...and we have no say in the changing rates.
the other side, just a bit different..try this on for size
my father leased a car when before i was born...the terms of the lease are the same for everybody...in fact everybody is covered under the same lease...the best lease of all-times
The terms of the lease state, you can have change, but only if enough of your fellow citizens want the same change.
Seems ok to me as we get the final say so.
Exactly. Otherwise, you've got nine men in black robes who can dictate anything they wish, and our Republic is dead. Or to paraphrase Ann Coulter, think of how the liberals would feel if there were nine conservative justices dictating to liberals? They'd be ballistic.
You said: One would think that this guy, of all people, would understand that new rights can’t be created.
I could not disagree with you more. I don’t know that I support the addition of any rights, but they can be created in the law. Such rights are not natural rights, but they may be rights nonetheless.
You said, in part: He even ruled once that a dog searching around the outside of a car was not a search of the car, taxing logic itself to its limits.
A dog sniffing outside of a car is simply detecting an odor that has escaped the car. If the odor remained inside the car, the dog would never smell it. I would say that this is akin to a policeman at the front door of a house, seeing blood oozing out the door. Seeing that blood is not a search of the house, but the sight of that blood might provide the probable cause to search.
Because of the Penumbra Doctrine.
Thanks for the info. Golly, that was BEFORE I was born so, though I didn't know it, I was born Constitutional-less...
OK, I'll bite.
What's a right that can be created in the law?
Yes, but if they're created by JUDGES, then the People have been bypassed. The new right(s) should have been created by the Legislative branch, as representatives of the People. Anything else is UN-Constitutional, and since we have 'anything else' happening with uncanny repetition, then the rational bottom line is that we are a People without a functional, operating Constitution.
Wrongo. We have many rights which are not listed in the Constitution. See the 9th Amendment. The government has limited powers (or did until the courts threw out the Constitution in the 1930s).
A legislature could create a right to food, for example. I don’t support such a right, but that is an example. Congress has created a right not to be discriminated against due to race, sex, etc. These are not natural rights, but they have been created by legislative act. I oppose, and argue that the courts cannot create or derive rights that are not legislated, however.
The other reason requires not probable cause, but reasonable suspicion. Usually this is the result of a traffic stop...
Because half of the electorate, and all of the socialists in the establishments of school, media, government and society decided that the ends justify the means and the law means nothing if it does not produce the desired pro-abortion, pro-homosexual, pro-environment, pro-Communist, anti-Christian, anti-capitalist, anti-military, anti-gun result.
Quote, ‘My argument whenever I run into a “living Constitution” believer is “Would you lease a car from a dealer who insisted that the lease contract was a ‘living document’ that could change on his whim?” ‘
That is an invalid, uneffective argument. The problem with your making such an argument presupposes that liberals are capable of this thing called “logic”, which they are not. The only respond to raw emotion.
This is why you can’t reason with a liberal. Logic merely confuses them.
There's the problem. I agree, we (the People) have rights not enumerated in the (defunct) Constitution. But the 9th Amendment is IN the Constitution, which we all seem to agree was "thrown out"...no longer applicable...though we may not all agree on the exact year that happened.
If the Constitution (and the 9th Amendment) did still apply, however, then we (the People) could enumerate any previously-unenumerated rights in that Constitution, through our elected Representatives or by amending that Constitution. JUDGES have been doing that for us, however, WITHOUT consulting us, and THAT'S what's wrong. They have no business doing that IF the Constitution were still functional and operative (which, agreed, it's NOT).
Examples of such unenumerated rights that COULD, theoretically, be created properly are limited only by the imagination of the People...
1-Right to college education on demand. Those (People) who cannot afford one, will have one provided to them. Apply to the Dept. of College Education...
2-Woman's right to buttered popcorn on demand. Those (Women) who cannot afford it, will have some provided to them. Apply to the Dept. of Buttered Popcorn.
A "right to food" places upon someone else an obligation to provide said food if someone can't provide their own.
Any "right" that imposes an obligation on someone else is not a "right".
Q: If you call a dog's tail a "leg", how many legs does a dog have?
A: Four. Just because you refer to a tail as a "leg" doesn't make it a leg.