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Justice Scalia slams high court for inventing ‘living constitution,’ right to abortion
LifeSiteNews ^ | 11/23/10 | Peter Smith

Posted on 11/23/2010 3:58:06 PM PST by wagglebee

RICHMOND, Virginia, November 23, 2010 (LifeSiteNews.com) - U.S. Supreme Court Justice Antonin Scalia slammed the modern U.S. judiciary and the high court for using the idea of a “living constitution” to invent new rules and meanings that have led to a “right” to abortion and decriminalized homosexual conduct.

Scalia made his remarks last Friday during a University of Richmond luncheon lecture entitled “Do Words Matter?” The event was covered both by the Associated Press.

“The Constitution says what it says and it doesn’t say anything more,” said Scalia to an audience of 250 people, most of them legal professionals and academics.

The 74-year-old jurist, appointed to the high court by President Ronald Reagan in 1986, warned that government by judges is inevitable when the original meaning of legal language in laws and constitutions is not respected. This attitude, he said, allows “five out of nine hotshot lawyers to run the country.”

“Under the guise of interpreting the Constitution and under the banner of a living Constitution, judges, especially those on the Supreme Court, now wield an enormous amount of political power,” continued Scalia, “because they don’t just apply the rules that have been written, they create new rules.”

Scalia pointed out that the high court distorted the meaning of “due process” (referring to legal procedure) in the 14th Amendment to invent new rights under a “made up” concept of “substantial due process.” That has allowed the 14th Amendment to become the gateway to legal abortion and other behaviors, which the constitutional authors never intended and viewed as criminal.

“The due process clause has been distorted so it’s no longer a guarantee of process but a guarantee of liberty,” Scalia expounded. “But some of the liberties the Supreme Court has found to be protected by that word - liberty - nobody thought constituted a liberty when the 14th Amendment was adopted. Homosexual sodomy? It was criminal in all the states. Abortion? It was criminal in all the states.”

He also commented on the modern confirmation process of Supreme Court justices, saying it was akin to a “mini-constitutional convention” because Senators are fighting about how a justice will interpret words.

“The way to change the Constitution is through amendments approved by the people, not by judges altering the meaning of its words,” he added.

The AP reports that after the lecture, Scalia signed copies of his new book, “Making Your Case: The Art of Persuading Judges,” and was going to lecture a class on the constitution’s separation of powers at UR’s law school.

Justice Scalia, along with Justice Clarence Thomas, are the high court’s two jurists that firmly embrace an “originalist” doctrine - abiding by the original intent and context of legal language - when it comes to interpreting the U.S. Constitution and federal laws.

Scalia has criticized the high court’s 1973 Roe v. Wade decision as an “improper” ruling, saying the founding charter of the U.S. federal government had nothing to do either with abortion or even things like homosexual activity.

If the U.S. Supreme Court reversed its position on Roe, abortion would once again become a criminal matter for the states to decide how to regulate or prohibit.



TOPICS: Constitution/Conservatism; Extended News; Government; News/Current Events
KEYWORDS: abortion; homosexualagenda; moralabsolutes; proaborts; prolife; radicalfeminists; radicalleft; scalia
I just wish that Justice Scalia would acknowledge the personhood of the unborn.
1 posted on 11/23/2010 3:58:11 PM PST by wagglebee
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To: cgk; Coleus; cpforlife.org; narses; Salvation; 8mmMauser
Pro-Life Ping
2 posted on 11/23/2010 3:59:37 PM PST by wagglebee ("A political party cannot be all things to all people." -- Ronald Reagan, 3/1/75)
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To: 185JHP; 230FMJ; AFA-Michigan; Abathar; Agitate; Albion Wilde; Aleighanne; Alexander Rubin; ...
Homosexual Agenda and Moral Absolutes Ping!

Freepmail wagglebee to subscribe or unsubscribe from the homosexual agenda or moral absolutes ping list.

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3 posted on 11/23/2010 4:00:35 PM PST by wagglebee ("A political party cannot be all things to all people." -- Ronald Reagan, 3/1/75)
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To: wagglebee

Long life and excellent health for Justice Scalia, I so pray!


4 posted on 11/23/2010 4:04:53 PM PST by onyx (If you truly support Sarah Palin and want on her busy ping list, let me know!)
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To: wagglebee
Life, liberty and the pursuit of happiness

One can not have liberty without life.

One can not have the pursuit of happiness without life.

If we do not protect life all else is a sham !

shalom b'SHEM Yah'shua HaMashiach
5 posted on 11/23/2010 4:05:49 PM PST by Uri’el-2012 (Psalm 119:174 I long for Your salvation, YHvH, Your law is my delight.)
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To: wagglebee
“The due process clause has been distorted so it’s no longer a guarantee of process but a guarantee of liberty,”

It has been distorted, but it's supposed to mean more than that courts followed the rules laid out by legislators. The rules themselves have to meet certain requirements. For example, the prohibition against depriving people of life, liberty, or property, without due process cannot legitimately be overcome by a legislature passing a statute allowing a cop's declaration that he wants something is sufficient to meet the "due process" burden for confiscating someone's property.

Unfortunately, the Court seems to ignore real violations of rights at the same time as it protects "rights" of its own invention.

6 posted on 11/23/2010 4:06:28 PM PST by supercat (Barry Soetoro == Bravo Sierra)
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To: wagglebee
The gang bang of Scalia will begin shortly.

Before it does, just be happy the court is not composed entirely of lawyers from the ACLU, Ginsburg or the twin twits, Sotomayor and Kagan.

7 posted on 11/23/2010 4:09:41 PM PST by Jacquerie (Providence punishes national sins with national calamities. George Mason)
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To: wagglebee

Yes, and he’s 74. It’s a concern, but I thank God that he is there.


8 posted on 11/23/2010 4:11:23 PM PST by trisham (Zen is not easy. It takes effort to attain nothingness. And then what do you have? Bupkis.)
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To: UriÂ’el-2012
Amen!
9 posted on 11/23/2010 4:11:49 PM PST by wagglebee ("A political party cannot be all things to all people." -- Ronald Reagan, 3/1/75)
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To: onyx

Amen.


10 posted on 11/23/2010 4:12:04 PM PST by trisham (Zen is not easy. It takes effort to attain nothingness. And then what do you have? Bupkis.)
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To: trisham
I hope he is like one of those Italians that live to about 104 with a shot of grappa and his daily cigar.
11 posted on 11/23/2010 4:14:00 PM PST by Jolla
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To: wagglebee

This is one courageous man. I fear the wrath of hell will be coming down on him for these remarks. You watch as the impeachment talks surface.


12 posted on 11/23/2010 4:18:15 PM PST by Cyman
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To: wagglebee
Our nationwide policy of abortion-on-demand through all nine months of pregnancy was neither voted for by our people nor enacted by our legislators — not a single state had such unrestricted abortion before the Supreme Court decreed it to be national policy in 1973.

Make no mistake, abortion-on-demand is not a right granted by the Constitution. No serious scholar, including one disposed to agree with the Court's result, has argued that the framers of the Constitution intended to create such a right. Shortly after the Roe v. Wade decision, Professor John Hart Ely, now Dean of Stanford Law School, wrote that the opinion "is not constitutional law and gives almost no sense of an obligation to try to be." Nowhere do the plain words of the Constitution even hint at a "right" so sweeping as to permit abortion up to the time the child is ready to be born. Yet that is what the Court ruled.

As an act of "raw judicial power" (to use Justice White's biting phrase), the decision by the seven-man majority in Roe v. Wade has so far been made to stick. But the Court's decision has by no means settled the debate. Instead, Roe v. Wade has become a continuing prod to the conscience of the nation.

President Ronald Reagan, 1983

13 posted on 11/23/2010 4:18:48 PM PST by Reagan Man ("In this present crisis, government is not the solution to our problem; government is the problem.")
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To: Jolla

I love that! Me too!


14 posted on 11/23/2010 4:20:44 PM PST by trisham (Zen is not easy. It takes effort to attain nothingness. And then what do you have? Bupkis.)
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To: wagglebee
“Under the guise of interpreting the Constitution and under the banner of a living Constitution, judges, especially those on the Supreme Court, now wield an enormous amount of political power,” continued Scalia, “because they don’t just apply the rules that have been written, they create new rules.”

BUMP !!

15 posted on 11/23/2010 4:23:23 PM PST by nicmarlo
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To: wagglebee

In my opinion, the Left twisted the meaning of the word when they used the term “Living” constitution.

We are the ones who believe that the constitution is still the fundamental law of the land, and that it still means what it says it means, and that it still says what the writers meant for it to say. We are the ones who believe it is alive.

The Left doesn’t believe in constitutions. For them the constitution is dead, its a relic that they wave whenever they want to lend additional superstitious solemnity to whatever is their opinion of the moment. To cover up their belief that the constitution is dead they refer to it as “living” but as a relevant document it is as dead as a doornail.

Even in something so simple as this the Left hides behind words that they invert to mean the opposite of what they in fact mean.


16 posted on 11/23/2010 4:25:54 PM PST by marron
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To: wagglebee
I'm assuming you're speaking about statements he's made where he doesn't believe that abortion itself is unconstitutional. Is that correct?

I think he's just trying to be intellectually consistent. Abortion is NOT a social issue that was addressed by the Founders in the Constitution. So, what does that mean. It means that, in Scalia's opinion, it should be something that is addressed, if it's addressed at all, in the legislature, and specifically in the state legislature.

Just like he doesn't find any guarantee of abortion in the Constitution, he also doesn't find any guarantee from abortion.

Scalia wants complicated, contentious social issues decided in the place that the Framers wanted them decided - the Legislative Branch. I think on balance, this is the right approach.

Now, that doesn't necessarily mean that because our understanding of science is so much further advanced today than it was in 1776, legal doctrine shouldn't reflect the scientific realities of a modern society. It's tough to look at a 3D ultrasound and then argue that's not a person, endowed with same inalienable rights as anyone else. I'm not saying - and I bet Scalia wouldn't either - that argument is wholly without merit. But, because of the contentiousness of the issue, he'd still rather give deference to the legislature.

All things considered, the country would be much better off, and these kinds of issues would be much less divisive - strangely - if we did just that.

17 posted on 11/23/2010 4:27:05 PM PST by OldDeckHand
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To: marron
In my opinion, the Left twisted the meaning of the word when they used the term “Living” constitution.

Someone who believes the Constitution is "living" must also believe that it will eventually die.

18 posted on 11/23/2010 4:28:26 PM PST by wagglebee ("A political party cannot be all things to all people." -- Ronald Reagan, 3/1/75)
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To: OldDeckHand
I'm assuming you're speaking about statements he's made where he doesn't believe that abortion itself is unconstitutional. Is that correct?

Yes, I believe that the word "posterity" in the Preamble indicates that the Founding Fathers believed that those not yet born were to enjoy full constitutional rights.

Just like he doesn't find any guarantee of abortion in the Constitution, he also doesn't find any guarantee from abortion.

Yet he must certainly believe that the Constitution TWICE FORBIDS the legal taking of life without due process.

Now, that doesn't necessarily mean that because our understanding of science is so much further advanced today than it was in 1776, legal doctrine shouldn't reflect the scientific realities of a modern society. It's tough to look at a 3D ultrasound and then argue that's not a person, endowed with same inalienable rights as anyone else. I'm not saying - and I bet Scalia wouldn't either - that argument is wholly without merit. But, because of the contentiousness of the issue, he'd still rather give deference to the legislature.

Advances in modern medicine aside, ALL of the Founding Fathers would have accepted Jeremiah 1:5 as proof of personhood.

The unfortunate reality of leaving it to the legislatures would mean that leftist states would leave abortion legal and the fact of the matter is that these states are where the huge majority of abortions are performed.

19 posted on 11/23/2010 4:38:36 PM PST by wagglebee ("A political party cannot be all things to all people." -- Ronald Reagan, 3/1/75)
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To: wagglebee

Katie Couric, that disgusting excuse for modern feminism, will show hew colonoscopy on TV but they would never show a late-term abortion since cleaning out one’s colon is much more acceptable than cleaning out one’s social life.

Caution:
http://www.youtube.com/watch?v=15JsYSZIT-Q

Sick leftist. It’s the reason Metallica sang Harvester of Sorrow.


20 posted on 11/23/2010 4:41:41 PM PST by bayouranger (The 1st victim of islam is the person who practices the lie.)
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To: wagglebee

bump


21 posted on 11/23/2010 4:45:41 PM PST by WashingtonSource
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To: marron
I generally believe that the constitution is not a living document. If the American people want something changed they should pass an amendment. However, I believe that what two or more consenting adults do in the privacy of their own home is their own business. If my wife and I want to engage in sodomy in our home I don't believe it is the governments business, federal, state, or local. I am sure though that most of the founding fathers would believe sodomy is wrong. Except maybe Ben Franklin.(Ha-Ha).
22 posted on 11/23/2010 4:52:20 PM PST by armordog99
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To: armordog99

So live in a state where that’s legal. Don’t expect that the Constitution has language that protects your every depraved thought. Or get busy with the amendment process.


23 posted on 11/23/2010 5:05:40 PM PST by at bay (My father was born with 28 ounces of flesh in 1924 then went on to become Mr. (Glenn) Holland.)
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To: wagglebee

I am with you Justice, watch your back, man.


24 posted on 11/23/2010 5:19:32 PM PST by yldstrk (My heroes have always been cowboys)
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bflr


25 posted on 11/23/2010 5:19:42 PM PST by MileHi ( "It's coming down to patriots vs the politicians." - ovrtaxt)
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To: at bay

That’s the thing though, I don’t see anything in the U.S. Constitution that allows the federal government to legislate what grown adults do sexually in the privacy of their own home. I speak here only of the federal constitution because we are talking about justice scalia. Remember the U.S. constitution for the most part outlines what the federal government can and cannot do. It does not outline everything a citizen can or cannot do.


26 posted on 11/23/2010 5:22:44 PM PST by armordog99
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To: wagglebee
Scalia pointed out that the high court distorted the meaning of “due process” (referring to legal procedure) in the 14th Amendment to invent new rights under a “made up” concept of “substantial due process.” ..."The due process clause has been distorted so it’s no longer a guarantee of process but a guarantee of liberty,” Scalia expounded.

Wow, somewhat well done, Justice Scalia.

Now just address the substitution of due process as a right, for substantial due process as a privilege, and you've said something that can actually change things.

27 posted on 11/23/2010 5:51:20 PM PST by Talisker (When you find a turtle on top of a fence post, you can be damn sure it didn't get there on its own.)
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To: wagglebee
Justice Scalia, along with Justice Clarence Thomas, are the high court's two jurists that firmly embrace an "originalist" doctrine - abiding by the original intent and context of legal language - when it comes to interpreting the U.S. Constitution and federal laws.

Not when it comes to the Commerce Clause:

______________________________________

...the authority to enact laws necessary and proper for the regulation of interstate commerce is not limited to laws governing intrastate activities that substantially affect interstate commerce. Where necessary to make a regulation of interstate commerce effective, Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce.

Justice Scalia

______________________________________

Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything, and the Federal Government is no longer one of limited and enumerated powers.

Justice Thomas

______________________________________

Which is the originalist position, and which is the elastic position?

28 posted on 11/23/2010 6:25:27 PM PST by Ken H
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To: wagglebee

I do not blame him for being angry....


29 posted on 11/23/2010 7:08:03 PM PST by shield (A wise man's heart is at his RIGHT hand;but a fool's heart at his LEFT. Ecc 10:2)
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To: wagglebee

Scalia’s critique of Roe and similar cases is spot on. No argument.

But add to that: Since when is it okay, as in abortion, to tear a little baby girl or boy apart limb from limb? Any politician who can’t see that this should be illegal is going to have to remain suspect, even though they may be clever on other issues...


30 posted on 11/24/2010 2:43:11 AM PST by guitarist
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To: onyx

Amen


31 posted on 11/24/2010 1:07:48 PM PST by RnMomof7 (Gal 4:16 asks "Am I therefore become your enemy, because I tell you the truth?")
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To: wagglebee; All

“Justice Scalia, along with Justice Clarence Thomas, are the high court’s two jurists that firmly embrace an “originalist” doctrine - abiding by the original intent and context of legal language - when it comes to interpreting the U.S. Constitution and federal laws.”

I fully concurr with them. The Constitution MUST be interpreted in light of what its original intent was. If an issue comes up that is not specifically addressed in the constitution, it is spitting on the Constitution to illrationally or illogically extrapolate beyond what the original intent of the document was. Roe vs. Wade was a terrible abuse of the intent of the Constitution.

When matters are not, within logical reason, addressed in the Constitution, then the courts must defer the matter to States to decide or for the constitution to be ammended. States should never have been forced to accept abortion as a constitutional right....or whatever convoluted reasoning that Roe came up with.


32 posted on 11/24/2010 3:17:37 PM PST by Sola Veritas (Trying to speak truth - not always with the best grammar or spelling)
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