Posted on 10/21/2006 5:35:56 PM PDT by wagglebee
Deeply controversial issues like abortion and suicide rights have nothing to do with the Constitution, and unelected judges too often choose to find new rights at the expense of the democratic process, Supreme Court Justice Antonin Scalia said Saturday.
Scalia, during a talk on the judiciary sponsored by the National Italian American Foundation, dismissed the idea of judicial independence as an absolute virtue. He noted that dozens of states, since the mid-1800s, have chosen to let citizens elect their judges.
"You talk about independence as though it is unquestionably and unqualifiably a good thing," Scalia said. "It may not be. It depends on what your courts are doing."
Scalia added, "The more your courts become policy-makers, the less sense it makes to have them entirely independent."
Scalia, a leading conservative voice after 20 years on the court, said people naturally get upset with the growing number of cases in which a federal court intrudes on social issues better handled by the political process.
"Take the abortion issue," he said. "Whichever side wins, in the courts, the other side feels cheated. I mean, you know, there's something to be said for both sides."
"The court could have said, 'No, thank you.' The court have said, you know, 'There is nothing in the Constitution on the abortion issue for either side,'" Scalia said. "It could have said the same thing about suicide, it could have said the same thing about . . . you know, all the social issues the courts are now taking."
Scalia said courts didn't use to decide social issues like that.
"It is part of the new philosophy of the Constitution," he said. "And when you push the courts into that, and when they leap into it, they make themselves politically controversial. And that's what places their independence at risk."
Justice Samuel Alito Jr., the newest member of the Supreme Court, agreed that "the same thing exists, but to a lesser degree, with the lower courts."
Yes, it will be an improvement when, post-Roe, abortion will be left to the states.
However, this is not enough. Truly, for our Constitution to fulfill its mission, for justice to be served, for our posterity to be protected, we must be careful not to settle for "states' rights" here, any more than we would have forever tolerated slavery in any state in the union.
After Roe is overturned, that is the point at which we need absolute clarity regarding the federal Constitution's role on abortion. On the basis of the Constitution, we must strive with all our might for a clear national pro-life policy.
In addition to the Preamble, the Constitution (by the 5th, 10th, and 14th Amendments) already provides the basis for the courts to side against any state law that amounts to a deprivation of life. In lieu of that, we will have to procede with a pro-life amendment. Just like the 13th and 14th Amendments, it will be a clearer statement of what should have already been understood in the Constitution.
You and I are really not all that different in wanting to end abortion on the basis of its brutality in ending a human life. I would hate to lose everything just because we could not get everything we wanted - and allow this grisly holocaust to continue its silent march at present levels - 1.2 million a year.
The principle is not lost. I will fight abortion until the day I die as long as policy is anything less than what you are suggesting - even if it does go to the states. Eventually perhaps, even after overturning of Roe, something like what you've outlined could eventually become the policy, as it should.
“The question will become just what sort of conservative will drive the movement?”
Yes, sir, this is the bottom line. This is why the discussion will eventually become interesting as it tests the character of conservatives on the strength of our convictions regarding the constitution and states rights.
Justice Scalia may not side with the morality warrior as many think he will. He said he is not a strict constructionalist, preferring the term “originalist” to describe his position. (I’ve heard both constructionalist and constructionist used.) Scalia said the people want judicial activism in some cases but not others, and he argued the Supreme Court has a role as being judicial activists. His comments on this topic are interesting if you get the chance to listen to him.
Thank you bump!
Poetic Justice.
HEY! Dustin was prettier than that.
True conservatism is the rejection of ideology.
How do you square "right" from "wrong" while rejecting ideology? Certainly, there are "universal wrongs and rights" but then there are "gray areas" as well, and it's those gray areas that are determined by ideology.
For instance, look back on the firestorm over Bill Bennett's gambling. Some people were shocked that the man who wrote "The Book of Virtues" was a high stakes gambler. Sure, most of the outcry was by those who had motivations to try to destroy his reputation, but Bennett saw gambling for himself, and anyone who could afford it as a perfectly valid passtime. However, there were many conservatives who denounced him for that vice. We see the same with people who drink or smoke.
Another example would be with the death penalty. I think that everyone will agree that murder, is wrong. But based on ideology, the death penalty is either right or wrong. The list could go on and on.
Mark
bump
So then the question becomes, how do you legally prevent a woman from traveling outside her own state? (And I'd add at least Illinois, in the midwest, to your list).
While I have enormous respect of the power given to expression in the English language through the enormous richness of its verb forms, what illiterate reporter wrote this, and what editor let it go by? Expanding the contraction, alone, something that normally would not appear in formal written English, would help illustrate just how clumsy this sentance is.
Why waste time pondering it?
That is not exactly true. Everey time a state votes to restrict abortion, the courts throw out the law. We can still vote on it, it is just that our votes don't count.
What Scalia is trying to tell you is that if this is what you want, it's going to take a Constitutional Amendment to explicitly make it the national government's job to define and enforce that policy.
I think that Illinois would at least place some restrictions abortion. And obviously you cannot restrict a person's travel, even a complete nationwide abortion ban would not prevent travel to Europe.
The only federal laws against rape and murder are those that occur on federal property. All states have laws against them, but nothing forces them to.
I'm just trying to point out that statements like Scalia's are harmful and inaccurate. He would lead pro-lifers to believe that the Constitution is silent on protecting our posterity, in contradiction to the stated purposes of the Constitution.
After Roe, we'll have a lot of work ahead to undo that kind of thinking. That doesn't mean we must insist on all-or-nothing today. The South Dakota ban is absolutely critical to turning the tide our way. Let's pray the people of that state unite behind it on November 7th.
Have a blessed Sunday.
I think abortion IS a constitutional issue -- and that the government has a duty to protect the unborn's constitutional right to life.
No, I think Scalia is showing a misunderstanding of the Constitution, which clearly states that its purposes are to establish justice and protect our posterity.
He apparently can't see the forest for the trees.
I think that Scalia is probably one of the top Constitutional scholars ever and certainly one of the top half dozen in the past fifty years, he is strongly pro-life and I think if he could find a right to life in the Constitution he would have.
I agree with your first and second points whole-heartedly, but disagree on the third. No one is perfect.
But I may be wrong as well. To correct this gap, let's just pass an amendment to the constitution outlawing abortion, and then we can all be right.
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.