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 Institution’s 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 here’s the question,” said Robinson. “This book, for that matter your entire career, represents a sustained, determined effort at restoration. Are you optimistic? How’s the project coming?”
Scalia said: “That’s an unfair question, especially after last term. I dissented in the last 6 cases announced last term. So I don’t know. I don’t know that I’m 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 it’s seductive, to think that the Constitution means what it ought to mean. ‘It’s a living Constitution. Anything I care passionately about, it’s right there in the Constitution.’”
“You know, people used to say when they don’t like something that’s going on, they say: 'There ought to be a law,'” said Scalia. “There used to be a comic strip that’d--there ought to be a law about people playing boom boxes in the park and stuff like that.”
“People don’t say that anymore,” said Scalia. “They say, ‘It’s unconstitutional,’ if they really feel passionately about it. And it is even more seductive to judges. It’s a wonderful thing to have a constitutional case and you’re 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.
http://www.forbes.com/2009/05/20/bill-of-federalism-constitution-states-supreme-court-opinions-contributors-randy-barnett.html
I think that you may be onto something! It just might be time to do that. I always considered that the last thing that would happen but today, it seems like the more appropriate thing to do.
When the National Government fails us, it is way past time for the States to act. Yes, I really like your idea.
Lots of people visit the queen. He didn’t leave with India’s freedom.
And no, actually, the government has to agree to a state visit. You and I would not make it past the first cut.
Unless you can juggle kittens or something...
/johnny
1st Amendment, keep it the same except for no talking bad about religion Jihad. 2nd Amendment? Out. 3rd Amendment? Who does that anymore? (Except we did, in Britain during WWII, but it was legal there).
It's a can-o-worms aka pandora's stash box you are looking at opening.
/johnny
Actually, I have met the queen. Dad was a a diplomat. She meets a number of people every day.
Actually, I have met the queen. Dad was a a diplomat. She meets a number of people every day.
Just like we lost the election... But in HI Def.
It wasn't 'being mentioned in dispatches' kind of stuff.
/johnny
Still, Ghandi didn’t walk away with independence. It took spilled blood to get that.
I don't do the TV drug thing.
/johnny
There was the Pakistan border thing that the Brits had to screw up first.
Where did most of the blood letting happen? British soldiers vs Indian soldiers?
Or on the disputed border?
Every time the Brits draw a line on a map, blood flows.
/johnny
Hang in there, Antonin.
We need to stay on the bench for another 4 years.
The difference between originalists and activists in the Courts is this:
Originalists hear the case first and then render their opinion.
Activists render their opinion first and then hear the case.
We are better for it.
HOWEVER - our current politicians are in the main statists. They are nowhere near the intellect, character, world view and integrity of the Framers. There are exceptions of course, but for the most part I wouldn't trust these people for a minute instant.
I'll disagree with that (in part), even though I'll get flamed. I've been here for over a decade, so I can handle the flames
The Articles of Confederation left a toothless federal 'government' to herd cats that had managed to come together and claw their way free. In spite of... not because of the Confederation.
Perhaps, in the beginning (this is my in part thing), we did need some rules between the states to stop the harsh crap that was going on.
But today? Texas has the wherewithall and the moxy to reach a hand out to OK, TN, AZ, etc.. to deal with the issues at hand that affect us, without sending money to a 10 square mile District.
Maybe we did need a federal government. We don't today. Texas.. compare and contrast to France. Population, land size, GDP.... California... Compare and contrast to Italy....
I could go on.
Every state in the United States is larger than some country. (thanks, Lichtenstien).
Perhaps it's time for a new way. We already have states that are sovereign.
Time for a new experiment.
/johnny
But millions do watch and vote ...like Zombies
Here's what's NOT in Scalia's new book:
Scalia’s just being honest - and probably improving his armory at the same time.
The modern Hebrew term for the USA translates as “lands of the covenant.” (Artzot ha-brit.) I think that sums the constitution concept up well.
Being a single country ensures a degree of comity between states. You do not have to ask California’s permission to visit it or even move there from Illinois, or Maryland’s permission to do so from Oregon. One postal service covers the entire set of states, and the same currency is earned and spent in all. You do not have to register copyrights in fifty different places. Etc., etc.
'Jefferson’s Kentucky Resolutions insisted “that alien friends are under the jurisdiction and protection of the laws of the state wherein they are [and] that no power over them has been delegated to the United States, nor prohibited to the individual states, distinct from their power over citizens.”' --Justice Scalia, Arizona v. US.But do you think that Jefferson's extract would have had more impact if Scalia had not stopped short of Jefferson's inclusion of the context 10th Amendment in the sentence immediately following in Jefferson's writing?
"4. _Resolved_, That alien friends are under the jurisdiction and protection of the laws of the State wherein they are: that no power over them has been delegated to the United States, nor prohibited to the individual States, distinct from their power over citizens. And it being true as a general principle, and one of the amendments to the Constitution having also declared, that "the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people," the act of the Congress of the United States, passed on the -- day of July, 1798, intituled "An Act concerning aliens," which assumes powers over alien friends, not delegated by the Constitution, is not law, but is altogether void, and of no force." --Thomas Jefferson, Draft of the Kentucky Resolutions - October 1798.So while Scalia expresses doubt that the Constitution can be restored to its original meaning, his omission of a reference to a key amendment is arguably evidence thet he is actually helping to dilute the Constitution.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.