My opinion is that the constitution is a living, breathing document that is open to current and future interpretations. If this is not the case then we have to review all 19th and 20th century law history and challenge every so-called "advancement" in law and principle. This seems to be a pretty striking fundamental difference between Republicans and Democrats and has far greater implications than R. Vs. W. Is it not the right of the people to continue to govern and decide upon the law of the land or are we bound to one sheet of paper forever?
I also have a bit of a problem Justice Scalia with giving the US Constitution the same weight as another locked in document...The Ten Commandments.
2 comments:
Scalia's thing is textual originalism. Language has a limited range of possible meanings, this school of thought goes, and the proper role of the law is to interpret the text of the Constitution & the laws--never the intent of the lawmakers, never the merits of the policy.
Is originalism dumb? Ultimately yes, but not as dumb as it seems at first. Part of the idea behind the approach is to keep the law abstract, arguing about principles only, never actuals. (This is why Sandra Day O'Connor drove Scalia nuts.) The other part is that as an approach it would tend to insulate the courts from public opinion or "judicial activism" or whatever other contaminating effects.
Problem is, Scalia has shown much willingness to be a judicial activist! Rather than eliminating his own biases, originalism sublimates them. Clearly he rules in favor of his own preexisting biases most of the time. (See Bush v. Gore.) And as you point out, there is just something that doesn't feel right about elevating the secular-by-design Constitution to the level of a holy writ.
I understand your arguments regarding textual originalism and I can see how the words alone of Scalia can be mis-leading. However, I do not see how any judge, to a certain degree, is not an activist as life must influence them as that is just a fact of life.
What I should have stated is how Scalia's comments bother me as he essential pretends that he follows a textual originalism but this is only the case when it is good for him and his party. They way that he hides behind the constitution is quite troubling to me in general. It is also worth worrying about as he is a huge influence in judicial circles now and for the foreseeable future.
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