Skip to comments.Justice Scalia on Restoring the Constitution: "I don't know that I'm optimistic."
Posted on 11/08/2012 6:36:21 PM PST by SC_Pete
(CNSNews.com) Supreme Court Justice Antonin Scalia said recently that--"especially after last term"--he does not know if he is confident the Constitution can be restored to its original meaning.
He likened his own efforts to do so to the character "Frodo" in the Lord of the Rings, who fights the good fight not certain he will win.
While discussing his new book Reading Law at Stanford University on Oct. 19, the Hoover Institutions Peter Robinson quoted to Scalia a passage from Scalia's book, Reading Law: "Originalism does not always provide an easy answer, or even a clear one. Originalism is not perfect. But it is more certain than any other criterion, and it is not too late to restore a strong sense of judicial fidelity to texts."
So heres the question, said Robinson. This book, for that matter your entire career, represents a sustained, determined effort at restoration. Are you optimistic? Hows the project coming?
Scalia said: Thats an unfair question, especially after last term. I dissented in the last 6 cases announced last term. So I dont know. I dont know that Im optimistic. The fight is worth fighting, win or lose. You know, [like] Frodo in the Lord of the Rings.
Look," Scalia contiued, "the problem is that the other approach is enormously seductive. Even for the average citizen its seductive, to think that the Constitution means what it ought to mean. Its a living Constitution. Anything I care passionately about, its right there in the Constitution.
You know, people used to say when they dont like something thats going on, they say: 'There ought to be a law,' said Scalia. There used to be a comic strip thatd--there ought to be a law about people playing boom boxes in the park and stuff like that.
People dont say that anymore, said Scalia. They say, Its unconstitutional, if they really feel passionately about it. And it is even more seductive to judges. Its a wonderful thing to have a constitutional case and youre always happy with the result because it means exactly what you think it ought to mean.
The originalist perspective says the words of the Constitution should be given the same meaning they originally had in the minds of the Framers. A competing view,often advocated by contemporary liberals, is that the Constitutio is a living document and that judge can change its meaning to fit modern mores and sentiments.
The Constitution itself expressly provides an amendment process for people who want to change it.
Scalia was promoting his new book, Reading Law: The Interpretation of Legal Texts, co-authored by Bryan Garner.
Comment: Justice Scalia and the other three "originalists" on the Court have the intent of the founders on their side. James Madison, "the father of the Constitution," wrote in 1825, "I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution."
In 1803, Thomas Jefferson wrote, "Our peculiar security is in possession of a written Constitution. Let us not make it a blank paper by construction." (Emphasis added)
Unfortunately, that is exactly what has happened over the last century, as the Supreme Court, time and time again, has failed to "resort to the sense in which the Constitution was accepted and ratified," and has instead "made a blank paper of it by construction." Thus we are left today with an all-powerful federal overnment, the very creation of the states themselves who had intended that it have only limited powers has, with the concurrence of the Supreme Court, usurped powers in virtually every area of governance that the founders had left to the states, and rendered both the Ninth and Tenth Amendments meaningless.
Justice Scalia's lament is understandable to those who recognize the truth of both Madison's and Jefferson's writings, that a Constitution that means what ever the current members of the Court say it means, without reference to the meaning at the time it was ratified by the states, is actually meaningless, "a blank paper" in Jefferson's words.
The only real hope we have of restoring the Constitution is an effort by the people themselves, through their state governments, to force the federal government to relinquish the powers it has usurped.
Constitutional Law Professor Randy Barnett of Georgetown University has put forth such a proposal - published in both the Wall Street Journal and Forbes Magazine. Prof. Barnett's "Bill of Federalism" consists of 10 proposed amendments that would have the effect of putting the original meaning back into the Constitution, and reversing the broadening of powers of the Federal Government. If adopted, the Bill of Federalism would force the Federal Government to close every agency and department that is unconstitutional under the terms of the original Constitution within five years.
Here is a link to the Forbes Magazine article - note that there is a link at the bottom of the article to the actual Bill of Federalism, along with a resolution for states to adopt it.
Fat Chance of restoring the Constitution with 2 dykes and sell out Roberts.
The Court is now 5 - 4 liberal, and it will get worse.
Do they mean the plain words on the parchment? Or is there wiggle room?
I'm less than impressed with many of his decisions.
I am really afraid or maybe I should say sure that the Constitution as we know it has been abandoned! It matters little these days whether the Supreme Court or anyone else agrees or disagrees.
The only thing that will restore the Constitution seems to be another uprising of the people that support it. Not sure that it could happen today though - too many passive folks just watching as our liberties continue to erode. When it happens slowly, it is not noticed.
In an interview, Scalia said he has about as much “hope” as Frodo had. It will be almost impossible to return our country back into a Constitutional Republic. But he did say, there was a slight possibility.
He'll be safe. As should be.
He does need to wrap his head around the plain words on parchment every now and then.
Oh, I'm sure that somewhere near D.C., there's a Gulfstream pilot with a flight plan to Malta prepped and ready to use.
Check out the link to Randy Barnett. His Bill of Federalsim addresses many of these issues confronting our country now: he provides a strategy for changing the Copnstitution. Given the 30 governors and legislatures, it is not as far-fetched as you might think.
The Constitution has been dead since the New Deal. All it is now is a fig leaf for statism.
Without any further looking... I don’t want to change the Constitution - I want to preserve it! Big difference..
Not sure what you meant but will assume that you also meant preserve the Constitution until I know otherwise.
could this be what Mark Levin is hinting at?
This is where we need to focus our attention. We have the ability to outnumber the federal bureaucracy with 50 state bureaucracies. If even a handful of states could be energized to become firewalls for freedom and face up to the feds using the Constitution as their weapon this battle can be won.
From this point on, I could care less about the Feds. My energy will be focused upon trying to energize my state into action. We will be looking into every option, both legislatively as well as the utilization of ballot amendments to achieve maintaining our freedom.
probably applying Thomas "The tree of liberty must be refreshed from time to time" Jefferson's words of wisdom... hopefully more with their blood
Check this out. Scroll down to the Bill of Federalism:
... First, that Congress shall call a convention, consisting of delegates from the several States selected by procedures established by their respective legislatures, for the purpose of proposing the following articles be added as separate amendments to the Constitution of the United States, each of which shall be valid to all intents and purposes as part of the Constitution when separately ratified by the legislatures of three-fourths of the several States; ...
Resolution for Congress to Convene a Convention to Propose Amendments Constituting a Bill of Federalism
The Constitution is the Supreme Law of the United States. Article V of the Constitution provides two ways for amendments to be proposed and two ways for them to be ratified. Congress may propose Amendments to the States, or the States may petition Congress to declare a constitutional convention to propose amendments. While there have been resolutions in favor of Constitutional Conventions, Congress has always preempted them by proposing the amendments themselves. Once proposed, an amendment can be ratified by a three-fourths vote of either the State Legislatures, or by State Convention. The amendment can specify how it is to be ratified: only the Twenty-First Amendment was ratified by State Conventions.
Barnett would like the States to call for a Constitutional Convention. This was in fact his main proposition when he appeared on the Glenn Beck show, with the actual amendments being drafted later. He has drafted a resolution to call for a convention. He believes that this is a necessary step, as Congress would not voluntarily propose amendments which largely weaken its power.
Gerard N. Magliocca has written an article supporting the idea of calling for a Convention.
The John Birch Society has criticized the idea of calling for a constitutional convention, calling it a “dangerous temptation” and a “threat to our Constitution.” Barnett has countered that historically, whenever the states have called for a Constitutional Convention, Congress has responded by proposing the amendments themselves. He also notes that even in the case of a constitutional convention, the proposed amendments still need to be ratified by three-quarters of the states.”
He should be perfectly safe. As it should be.
This is a way of preserving by erecting a fence of contemporary language that cannot be avoided or subverted. The Bill of Federalsim turns the clock back to the orginal intent of the framers.
Thanks, intent of the framers says it all!
It may be. If we don’t do something NOW, our goose is cooked anyway. Here’s a paper promoting the idea of a Consitutional Cinvetion published in the Cardoza Law Review:
click on download:
Amendments to the Constitution require 3/4 ratification by state legislatures. WE HAVE 30 GOVERNORS AND LEGILATURES. The process could be controlled by RED STATES. We have an edge right now, but the number of red states will decline precipitously in the near future. THIS IS A NUCLEAR OPTION THAT THE RATS TRULY FEAR. We could stop them in their tracks—and erase 100 years of Progressivism’s effect on the Constitution.
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