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.
LOL nobody Creates rights
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.
What? "Freedom from hearing "offensive" speech"? That doesn't make any sense.
Look, you're making this much more complicated than it really is. Free men have rights. The Constitution was written to show exactly where the government can infringe upon those rights. It is a complete list of governmental powers, not a list of rights. If the government is not given the power in the Constitution to regulate something, then it has no authority to do so.
The Founders wrote it in very clear language, and I'm staggered that Scalia can't or doesn't want to see it.
You're right, it's not there (praise God!). All I ask is that if a right to buttered popcorn on demand IS ever recognized, it be done so by the People, through their Legislative Branch or by amending the Constitution, and NOT by a bunch of Judges peering ex-post-facto into the penumbra around the edges of the Constitution through horn-rimmed glasses as they sip Kool Aid in their chambers and formulate a final decision in the case of Roe v. Reddenbacher...
You are so right! Thier like little brats who can’t get thier way so they stomp thier feet, whine and look for other deviate ways to get thier way! SHUT UP AND SIT DOWN OR WE’LL PUT YOU IN THE CORNER!
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