Replies

"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

Points of question:

Wasn't his point that if there are laws that infringe upon rights "enshrined" by the Constitution, it is incumbent on the judicial branch to deem them as infringing and send them back to the legislature rather than have the judiciary legislate via fiat? (which I believe is basically what you said)

Also, Isn't Scalia right in making the point that if people look to the courts to decide matters of policy the judiciary ceases to function as it was originally intended under the constitution. (As you implied)

Other than that I agree with your analysis on whether abortion, et al. is an assigned right under the constitution but then wouldn't he be accurate in asserting that his branch is not qualified (not elected &etc.) to decide such issues, which is in fact the opposite of what has happened?

it is incumbent on the judicial branch to deem them as infringing and send them back to the legislature rather than have the judiciary legislate via fiat?

This is only a semantic difference. The Courts can only refuse to enforce laws, or order laws not to be enforced. They cannot confer with the legislature. It's rooted in the case or contraversey Constitutional requirement - the Court has to have a live case in hand, and it must rule specifically on that issue. It cannot make hypothetical or advisory suggestions to the Legislature (or Executive).

Isn't Scalia right in making the point that if people look to the courts to decide matters of policy the judiciary ceases to function as it was originally intended under the constitution.

Theoretically, yes. Practically, however, Constitutional questions often have very broad policy implications, so this distinction is unworkable.

wouldn't he be accurate in asserting that his branch is not qualified (not elected &etc.) to decide such issues,

Whether or not they are elected is irrelevant to their role in deciding cases or contraversies. Recall that Senators were never elected until the early 1900's - was the Senate then unqualified? The question is not whether or not the branch is democratic - the sole question is whether the Court has a live case or contraversy arising under Federal law or the Constitution. If so, then the Court has the duty to rule, regardless of whether or not the vox populi has spoken through the Legislature.