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. “It’s 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 can’t assume that it will always create new rights and not eliminate old ones,” he said.
“It’s hard to give a right to one person without affecting somebody else,” Scalia added, noting that a woman’s 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 Scalia’s son Matthew, who is an instructor in University of Delaware’s 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 shouldn’t be in the business. The Constitution should be amended across the street,” Scalia said, referring to Congress.
“I’d 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.
teeman
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.
Already done:
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.
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