Scalia is precisely right. Most questions are settled once the people or the people's elected officials have their chance to debate and vote.
They had their issue, they had a fair fight, they lost, and that's that.
The judicial oligarchy short-circuited that process by fiat on subjects such as abortion, homosexuality, and same-sex marriage. No wonder these are hot-button issues.
They had their issue, they had a fair fight, they lost, and that's that.
The judicial oligarchy short-circuited that process by fiat on subjects such as abortion, homosexuality, and same-sex marriage. No wonder these are hot-button issues.
Respectfully, Scalia is exactly wrong. There are some rights enshrined in the Constitution that are beyond the reach of the majoritarian process. Any laws that infringe upon these rights are a nullity, and cannot be enforced, even if those laws were passed by a resounding majority. "You lost the vote, so too bad" is entirely inconsistent with the Bill of Rights. A majority of Americans would support a lot of things all of us would find reprehensible, and would offend the Constitution.
Now, on the question of whether abortion, homosexuality, and same-sex marriage are of this type of right is a completely different issue. The first issue is
A ------> B, that is,
fundamental right ------> beyond reach of majoritarian process.
A-----> B is unassailable.
The only way to defeat it is to show ~A, i.e., that the issue in question is not a "fundamental right." That is where abortion, and gay marriage fail (though the Colorado anti-gay statute, which singled gays out, was a violation of Equal Protection because Equal Protection is a fundamental right).