A Living Constitution By Betsy Newmark

Scalia spoke to students at Chapman University and he sure didn’t hold back on what he thought about having the courts decide matters better left to elected legislators.

Speaking before a packed auditorium, Scalia said he was saddened to see the U.S. Supreme Court deciding moral issues not addressed in the Constitution, such as abortion, assisted suicide, gay rights and the death penalty. He said such questions should be settled by Congress or state legislatures beholden to the people.

“I am questioning the propriety — indeed, the sanity — of having a value-laden decision such as this made for the entire society … by unelected judges,” Scalia said.

“Surely it is obvious that nothing I learned during my courses at Harvard Law School or in my practice of law qualifies me to decide whether there ought to be, and therefore is, a fundamental right to abortion or assisted suicide,” he said.

Scalia also railed against the principle of the “living Constitution,” saying it has led the U.S. Senate to try to appoint so-called politically “moderate” judges instead of focusing on professional credentials and ability.

“Now the Senate is looking for moderate judges, mainstream judges. What in the world is a moderate interpretation of a constitutional text? Halfway between what it says and what we’d like it to say?” he said, to laughter and applause.

This is how I know that I just can’t see eye to eye with someone of the other views. I’m all for representative government even when our representatives are frustrating, self-centered, and downright dumb. As Churchill said, it’s the worst form of government there is except for all the others. And I want to see these decisions made in legislatures where the people can vote out those they disagree with and change their minds and adapt laws to their local circumstances.

There are some things that are fundamental rights and that is why we have a Bill of Rights and an amendment procedure. If assisted suicide is a fundamental right, pass a law. And if you’re afraid that future legislators would change it, pass an amendment. That’s hard to do. You have to persuade a whole lot Americans that they should agree with you, not just five justices. And that’s the way it should be.

As the Astute Blogger said yesterday, would people be so willing to believe in a “living Constitution” if all the courts had conservative judges? Wouldn’t they then be all in favor of having decisions set in concrete so that those conservative judges couldn’t interpret a living, breathing constitution in their own lights? Leave these decisions to the branches of government that are closest to the people.

This material was used with the permission of Betsy’s Page.

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