One justice's vision of role of the courts. (Scalia @ FEDERALIST SOCIETY SPEECH)

WASHINGTON - During the presidential campaign, Supreme Court Justice Antonin Scalia received a strange letter in his home mailbox.

It was a fundraising flier from Democratic strategist James Carville. The appeal invoked an issue apparently thought to be so frightening that it would prompt recipients to fork over massive amounts of money to the Kerry campaign.

The "terrifying" message came with the headline: "What Would You Think of CHIEF JUSTICE Scalia?"

When Scalia related the story at a recent gathering of the conservative Federalist Society here in Washington, the audience erupted into sustained and thunderous cheers and applause.

Not exactly the reaction Mr. Carville intended. But the incident sharply illustrates the gulf that exists between conservatives and liberals over the future direction of the US Supreme Court.

While Scalia is viewed by many liberals as a right-wing ideologue bent on overturning Roe v. Wade and other progressive decisions they favor, he enjoys a far more exalted status among a growing cadre of conservative law students, lawyers, professors, and judges. They see him as an intrepid legal warrior seeking to put rules back into the rule of law.

His is an approach to law that seeks to limit the ability of judges to use judicial power to impose their own value judgments and policy preferences on the nation. It is a form of judicial restraint embraced by President Bush, who has said he will seek to appoint future Supreme Court justices in the mold of Scalia and Clarence Thomas.

What might that mean for the high court and the future of American jurisprudence?

In his speech to the Federalist Society, Scalia offered a detailed description of his approach to constitutional interpretation. In his view, Supreme Court justices overstep not only their authority but also their expertise when they try to answer some of society's most divisive moral questions in legal cases such as abortion. He says moral issues should be resolved by elected political leaders, not unelected judges.

And he warns that the high court's willingness to take up moral questions that are still open to debate within society will increasingly mire the court in a political morass. It is a trend that has made judicial nominees targets in a bitterly partisan Senate confirmation process featuring character assassination and filibusters.

"One shudders to think what sort of political turmoil will greet the next nomination to the Supreme Court," Scalia told his Federalist Society audience, which included many individuals thought to be on a White House shortlist for a high-court post.

"The lesson is, in a truly democratic society - or at least the one in America - one way or another the people will have their say on significant social policy," he said. "If judges are routinely providing the society's definitive answers to moral questions on which there is ample room for debate ... then judges will be made politically accountable."

His comments come at a time when Washington is rife with speculation about Chief Justice William Rehnquist's ongoing battle with cancer and the potential for a Supreme Court vacancy.

Scalia was once considered a prime candidate for chief justice. But some analysts say the highly partisan nature of the Senate confirmation process and the intense focus on abortion by Senate Democrats make it unlikely that he could be elevated to the top job.

Other than offering the anecdote of the fundraising letter, Scalia did not mention the chief-justice issue during his lecture. Instead, he focused on what he sees as the problem of judges becoming involved in issues that he believes have no place in a court of law.

He offered examples from the US Supreme Court - abortion, gay rights, the death penalty, gender equality at military schools, and assisted suicide.

Such cases highlight competing visions of the scope of a judge's power to discover new constitutional rights or expand existing rights. Scalia believes judges must look to the text of a disputed constitutional provision and interpret it based on the intent of the drafters. To Scalia, a static constitution is a protection of American liberty because it sharply limits a judge's ability to amend the Constitution by mere judicial fiat.

His is a minority view. Many more judges in the US and overseas have adopted the approach that constitutions are living documents, open to contemporary interpretation to address modern concerns. Many see their job as working to achieve a measure of justice.

Scalia calls it "the power to do good." He denounces it as an open invitation to judicial activism.

"Under a regime of static law, it was not difficult to decide whether under the American Constitution there was a right to abortion or to homosexual conduct or to assisted suicide," he said. "When the Constitution was decided, all those acts were criminal throughout the United States and remained so for several centuries. There was no credible argument that the Constitution made those laws invalid."

"Of course, society remained free to decriminalize those acts [through legislation], as many states have," he added. "But under a static Constitution, judges could not do so."

The issue is not new. Every Republican presidential candidate since Richard Nixon has promised to appoint justices who believe in judicial restraint, Scalia says. "And every Democratic candidate since Michael Dukakis has promised to appoint justices who will uphold Roe v. Wade, which is synonymous with judicial activism."

He added that each year the conflict over the future of the court has grown more intense and more political. "I am not happy about the intrusion of politics into the judicial appointment process," Scalia said. "Frankly, however, I prefer it to the alternative, which is government by judicial aristocracy."

The following quote from Andrew Jackson is a concise statement of Constitutional principal that has been ignored, or forgotten for many decades. The prevailing myth seems to be that the Constitution is what the federal judiciary says it is, regardless of the extent of deviation from text or intent, and that all others who are bound by an oath of Office in Article 6, Clause 3 are forbidden to act on their understanding of the text they are sworn to uphold.

Article 6, Clause 3 contains no Oath or Affirmation to support any federal judicial opinion. The plain text of the Constitution reveals separation of powers, checks & balances and coordinate functioning of three branches that aren't coequal in power. Power of impeachment, funding, regulation of lower federal court jurisdiction and the U.S. Supreme appelate jurisdiction resides in Congress. The President has the power of enforcement and isn't Constitutionally, legally, or ethically required to blindly enforce blatantly unconstitutional opinions. The Supreme Court has only the power of opinion, which has become far more biased in its increasing disregard of plain text than the mainstream media has been in its disregard of plain fact.

Is the Blogosphere bloated with the same bias as the majority on SCOTUS?

The Avalon Project : President Jackson's Veto Message Regarding ...

If the opinion of the Supreme Court covered the whole ground of this act, it ought not to control the coordinate authorities of this Government. The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution. Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others. It is as much the duty of the House of Representatives, of the Senate, and of the President to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval as it is of the supreme judges when it may be brought before them for judicial decision. The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both. The authority of the Supreme Court must not, therefore, be permitted to control the Congress or the Executive when acting in their legislative capacities, but to have only such influence as the force of their reasoning may deserve.

The Avalon Project : Federalist No 78

The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.

It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power 1 The celebrated Montesquieu, speaking of them, says: "Of the three powers above mentioned, the judiciary is next to nothing.'' "Montesquieu: The Spirit of Laws.'' vol. i., page 186.

The Avalon Project : Federalist No 51

But it is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates

Planned Parenthood of Southeastern Pa. v. Casey, 505 US 833 - Justice Scalia, with whom the Chief Justice, Justice White, and Justice Thomas join, concurring in the judgment in part and dissenting in part.

Justice Curtis's warning is as timely today as it was 135 years ago:

"[W]hen a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought to mean." Dred Scott v. Sandford, 19 How. 393, 621 (1857) (Curtis, J., dissenting).

The Imperial Judiciary lives. It is instructive to compare this Nietzschean vision of us unelected, life tenured judges--leading a Volk who will be "tested by following," and whose very "belief in themselves" is mystically bound up in their "understanding" of a Court that "speak[s] before all others for their constitutional ideals"--with the somewhat more modest role envisioned for these lawyers by the Founders.

"The judiciary . . . has . . . no direction either of the strength or of the wealth of the society, and can take no active resolution whatever. It may truly be said to have neither Force nor Will but merely judgment . . . ." The Federalist No. 78, pp. 393-394 (G. Wills ed. 1982).

Or, again, to compare this ecstasy of a Supreme Court in which there is, especially on controversial matters, no shadow of change or hint of alteration ("There is a limit to the amount of error that can plausibly be imputed to prior courts," ante, at 24), with the more democratic views of a more humble man:

"[T]he candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, . . . the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal." A. Lincoln, First Inaugural Address (Mar. 4, 1861), reprinted in Inaugural Addresses of the Presidents of the United States, S. Doc. No. 101-10, p. 139 (1989).

AEI - Publications

Beneath the Supreme Court's many astounding decisions in its 2002-2003 term, and the shifting judicial coalitions that produced those results, runs a unifying basso continuo: Constitutional law, in the sense of judicial decisions that are guided--at least in aspiration--by the text, structure, and logic of the written Constitution, is dead. It has been replaced, often as a matter of explicit doctrine, with subjective judicial impressions of popular sentiment or political utility. Federalist Outlook, The Term the Constitution Died, Michael S. Greve,Friday, July 25, 2003

If the above comments seem exceedingly strange, further investigation may be necessary:

US CONSTITUTION

The Avalon Project : The Federalist Papers #s 78-83.

Dred Scott | Washington University in St. Louis This suit began an eleven-year legal fight that ended in the U.S. Supreme Court, which issued a landmark decision declaring that Scott remain a slave. How does anyone know that the majority opinion in Dred Scott v. Sandford was wrong? See - (Curtis, J., dissenting) above.

Congress, The Court, And The Constitution

Government by Judiciary:The Transformation of the Fourteenth Amendment Sec Ed, Raoul Berger

Limiting Federal Court Jurisdiction To Protect Marriage For The States

Judicial Tyrants Should Be Impeached

Democracy by Decree | by Ross Sandler and David Schoenbrod offer measures that they believe would restore politically accountable law, but American democracy might be too far gone. The will to fight has departed from legislative bodies, and the American people are distracted and uninformed. Legislators, mayors and governors have learned they can avoid making political enemies by letting judges decide divisive issues.

The tyranny of the majority, acting through their representatives have no business in determining what free people do.

The tyranny of the minority, acting through unelected judges have no business in determining what free people do in a democratic republic.

Amendment X "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,"

Voters in a pure democracy (mobocracy) decides by majority vote based upon feelings.

Voters in a democratic republic elect representatives who rule by law.

In an anarchy each individual does as he pleases.

An individual may arise from a democracy, democratic republic, or from a state of anarchy and dictate via tyranny to everyone else, or he may form a coalition with a few others and rule via an oligarchy.

The executive and legislative branches are allowing a judicial oligarchy to rule the U.S.

In Federalist #51 attributed to James Madison, who was very instrumental in producing the U.S. Constituion, the defining statement of a republican government is made: "In republican government, the legislative authority necessarily predominates...."

There are only two choices for any individual; 1)Anarchy; 2)Some form of government. A democratic republic seeks to minimize the excesses found in a mobocracy or oligarchy.

The Avalon Project : Federalist No 51

It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.

A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions

Checks and balances along with separation of powers are two of several auxiliary precautions that oblige the government to control itself, by enforcing the text of a written Constitution against any branches of government that disregards that text.

When the Constitution is silent on an issue, that issue is left with the States, or to the people. When the federal judiciary UNCONSTITUTIONALLY expands its jurisdiction over matters not enumerated in the Constitution and usurpts power retained by the States, or people, it is the sworn duty of the other branches of federal government and the States to contract this expansion.

Scalia is correct in saying:"There was no credible argument that the Constitution made those laws invalid." Those issues were to be left with the voters, representatives, judges and Constitutions in those states.

Some commentary on the Tenth Amendment ^{States Rights and the Union} by JUSTICE THOMAS, with whom THE CHIEF JUSTICE, JUSTICE O'CONNOR, and JUSTICE SCALIA join, dissenting @ US Term Limits, Inc. v. Thornton, 514 US 779 (1995). :

In Madison's words, the popular consent upon which the Constitution's authority rests was "given by the people, not as individuals composing one entire nation, but as composing the distinct and independent States to which they respectively belong." The Federalist No. 39, p. 243 (C. Rossiter ed. 1961) (hereinafter The Federalist). Accord, 3 Debates in the Several State Conventions on the Adoption of the Federal Constitution 94 (J. Elliot 2d ed. 1876) (hereinafter [ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) , 3] Elliot) (remarks of James Madison at the Virginia convention). 1

When they adopted the Federal Constitution, of course, the people of each State surrendered some of their authority to the United States (and hence to entities accountable to the people of other States as well as to themselves). They affirmatively deprived their States of certain powers, see, e.g., Art. I, 10, and they affirmatively conferred certain powers upon the Federal Government, see, e.g., Art. I, 8. Because the people of the several States are the only true source of power, however, the Federal Government enjoys no authority beyond what the Constitution confers: the Federal Government's powers are limited and enumerated. In the words of Justice Black, "[t]he United States is entirely a creature of the Constitution. Its power and authority have no other source." Reid v. Covert, 354 U.S. 1, 5 -6 (1957) (plurality opinion) (footnote omitted).

In each State, the remainder of the people's powers - "[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States," Amdt. [ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) , 4] 10 - are either delegated to the state government or retained by the people. The Federal Constitution does not specify which of these two possibilities obtains; it is up to the various state constitutions to declare which powers the people of each State have delegated to their state government. As far as the Federal Constitution is concerned, then, the States can exercise all powers that the Constitution does not withhold from them. The Federal Government and the States thus face different default rules: where the Constitution is silent about the exercise of a particular power - that is, where the Constitution does not speak either expressly or by necessary implication - the Federal Government lacks that power and the States enjoy it.

These basic principles are enshrined in the Tenth Amendment, which declares that all powers neither delegated to the Federal Government nor prohibited to the States "are reserved to the States respectively, or to the people." With this careful last phrase, the Amendment avoids taking any position on the division of power between the state governments and the people of the States: it is up to the people of each State to determine which "reserved" powers their state government may exercise. But the Amendment does make clear that powers reside at the state level except where the Constitution removes them from that level. All powers that the Constitution neither delegates to the Federal Government nor prohibits to the States are controlled by the people of each State.

To be sure, when the Tenth Amendment uses the phrase "the people," it does not specify whether it is referring to the people of each State or the people of the Nation as a whole. But the latter interpretation would make the Amendment pointless: there would have been no reason to provide that where the Constitution is silent about whether a particular power resides at the state level, it might or might not do so. In addition, it [ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) , 5] would make no sense to speak of powers as being reserved to the undifferentiated people of the Nation as a whole, because the Constitution does not contemplate that those people will either exercise power or delegate it. The Constitution simply does not recognize any mechanism for action by the undifferentiated people of the Nation. Thus, the amendment provision of Article V calls for amendments to be ratified not by a convention of the national people, but by conventions of the people in each State or by the state legislatures elected by those people. Likewise, the Constitution calls for Members of Congress to be chosen State by State, rather than in nationwide elections. Even the selection of the President surely the most national of national figures - is accomplished by an electoral college made up of delegates chosen by the various States, and candidates can lose a Presidential election despite winning a majority of the votes cast in the Nation as a whole. See also Art. II, 1, cl. 3 (providing that when no candidate secures a majority of electoral votes, the election of the President is thrown into the House of Representatives, where "the Votes shall be taken by States, the Representatives from each State having one Vote"); Amdt. 12 (same).

The people of each State obviously did trust their fate to the people of the several States when they consented to the Constitution; not only did they empower the governmental institutions of the United States, but they also agreed to be bound by constitutional amendments that they themselves refused to ratify. See Art. V (providing that proposed amendments shall take effect upon ratification by three-quarters of the States). At the same time, however, the people of each State retained their separate political identities. As Chief Justice Marshall put it, "[n]o [ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) , 6] political dreamer was ever wild enough to think of breaking down the lines which separate the States, and of compounding the American people into one common mass." McCulloch v. Maryland, 4 Wheat. 316, 403 (1819). 2

Any ambiguity in the Tenth Amendment's use of the phrase "the people" is cleared up by the body of the Constitution itself. Article I begins by providing that the Congress of the United States enjoys "[a]ll legislative Powers herein granted," 1, and goes on to give a careful enumeration of Congress' powers, 8. It then concludes by enumerating certain powers that are prohibited to the States. The import of this structure is the same as the import of the Tenth Amendment:

For the history and thorough refutation of the Incorporation Doctrine, see the following: The Ten Commandments and the Ten Amendments: A Case Study in Religious Freedom in Alabama, 49 Ala. L. Rev.434-754 (1998)., Jaffree v. Board of School Commissioners of Mobile County (1983), Rehnquist's Dissent in Wallace v Jaffree (1985) ,Government by Judiciary: The Transformation of the Fourteenth Amendment, Second Edition, Raoul Berger, Forrest McDonald , Liberty Fund, Inc.; 2nd edition (June 1997), The Fourteenth Amendment and the Bill of Rights; The Incorporation Theory, Charles Fairman, Stanley Morrison, Leonard Williams Levy, Da Capo Press , January 1970

PLEASE READ THIS!!!!! from 1

The following quote from Andrew Jackson is a concise statement of Constitutional principal that has been ignored, or forgotten for many decades. The prevailing myth seems to be that the Constitution is what the federal judiciary says it is, regardless of the extent of deviation from text or intent, and that all others who are bound by an oath of Office in Article 6, Clause 3 are forbidden to act on their understanding of the text they are sworn to uphold.

Article 6, Clause 3 contains no Oath or Affirmation to support any federal judicial opinion. The plain text of the Constitution reveals separation of powers, checks & balances and coordinate functioning of three branches that aren't coequal in power. Power of impeachment, funding, regulation of lower federal court jurisdiction and the U.S. Supreme appelate jurisdiction resides in Congress. The President has the power of enforcement and isn't Constitutionally, legally, or ethically required to blindly enforce blatantly unconstitutional opinions. The Supreme Court has only the power of opinion, which has become far more biased in its increasing disregard of plain text than the mainstream media has been in its disregard of plain fact.

Is the Blogosphere bloated with the same bias as the majority on SCOTUS?

The Avalon Project : President Jackson's Veto Message Regarding ...

If the opinion of the Supreme Court covered the whole ground of this act, it ought not to control the coordinate authorities of this Government. The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution. Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others. It is as much the duty of the House of Representatives, of the Senate, and of the President to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval as it is of the supreme judges when it may be brought before them for judicial decision. The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both. The authority of the Supreme Court must not, therefore, be permitted to control the Congress or the Executive when acting in their legislative capacities, but to have only such influence as the force of their reasoning may deserve.

Would 22 Republican Senators join every Democrat Senator and remove Bush from office, if he declared that for the remainder of his Presidency the States could pass laws as they see fit against abortion? Surely, among the widely celebrated accumulation of 55 GOP Senators due to the recent elections, 34 could be found that would not remove Bush for repeating the words quoted above by Jackson, in addition to agreement with Robert Bork, Scalia and Rehnquist:

Rehnquist, "Roe V. Wade, 410 U.S. 113 (1973):

"To reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment. There apparently was no question concerning the validity of this provision or of any of the other state statutes when the Fourteenth Amendment was adopted. The only conclusion possible from this history is that the drafters did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter." ^{caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=410&invol=113}

FT January 2003: Constitutional Persons, Robert H. Bork made the following comments about Roe v. Wade:

"Blackmun invented a right to abortion....Roe had nothing whatever to do with constitutional interpretation. The utter emptiness of the opinion has been demonstrated time and again, but that, too, is irrelevant. The decision and its later reaffirmations simply enforce the cultural prejudices of a particular class in American society, nothing more and nothing less. For that reason, ROE is impervious to logical or historical argument; it is what some people, including a majority of the justices, want, and that is that....Science and rational demonstration prove that a human exists from the moment of conception....Scalia is quite right that the Constitution has nothing to say about abortion."

If Bush wants a legacy that rivals Lincoln, he can use his State of the Union address to explain why Roe and progeny will no longer be enforced as though it were an act of Congress or Constitutional amendment. Otherwise, his legacy will compete with his predecessors since 1973 who arguably didn't have 34 Senators between them and removal from office, for defying an unlawful majority opinion permitting mass murder on demand.

Will he aspire to rival Clinton's legacy of "safe, legal, and rare", or Lincoln's:

"It is . . . for us [the living] to be here dedicated to the great task remaining before us . . . that from these honored dead we take increased devotion to the cause for which they gave the last full measure of devotion . . . that we here highly resolve that these dead shall not have died in vain . . . that this nation, under G-d, shall have a new birth of freedom . . . and that government of the people . . . by the people . . . for the people . . . shall not perish from the earth."

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