Free Republic
Browse · Search
News/Activism
Topics · Post Article

To: blakep
Justice Scalia on judicial activists' concept of the "living Constitution":

My Constitution is a very flexible Constitution. You think the death penalty is a good idea. Persuade your fellow citizens and adopt it. You think it's a bad idea. Persuade them the other way and eliminate it.

You want a right to abortion? Create it the way most rights are created in a democratic society: Persuade your fellow citizens it's a good idea and enact it. You want the opposite? Persuade them the other way.

That's flexibility.

But to read either result into the Constitution is not to produce flexibility, it is to produce what a Constitution is designed to produce: rigidity.

Abortion, for example, is off stage. It's off the democratic stage. There's not use debating it. It is unconstitutional -- I mean, prohibiting it is unconstitutional. No use debating it any more.

Now and forever, coast to coast, until -- I guess until we amend the Constitution, which is a difficult thing.

So, for whatever reason you might like the living Constitution, don't like it because it provides flexibility. That's not the name of the game.

And that's the crux of it...proponents of a "living, breathing Constitution" don't really want a flexible Constitution that changes with "society's evolving standards." They want judges to enact their preferred policies...policies that those proponents could not enact through the democratic process...because they are contrary to society's standards...indeed, they want to use the Constitution (by pretending to "interpret it to read into it something it doesn't say) to legitimize their undemocratic policy enactments.

3 posted on 04/14/2005 8:10:26 AM PDT by Irontank (Every decent man is ashamed of the government he lives under)
[ Post Reply | Private Reply | To 1 | View Replies ]


To: Irontank
And as the conservatives demonstrated first-hand in the Terri Schiavo case, they too are not above expecting activist judges to rule their way every once in a while.

Of course, conservatives have God and good intentions on their side, so it's OK to do that.

5 posted on 04/14/2005 8:20:46 AM PDT by robertpaulsen
[ Post Reply | Private Reply | To 3 | View Replies ]

Free Republic
Browse · Search
News/Activism
Topics · Post Article


FreeRepublic, LLC, PO BOX 9771, FRESNO, CA 93794
FreeRepublic.com is powered by software copyright 2000-2008 John Robinson