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."
My thought (and I have found very few who agree with this theory) is that an amendment be drafted that outlaws abortion, euthanasia and capital punishment. I am an advocate of capital punishment, but I don't see it as having any real effect in deterring crime and we are just as safe having criminals in prison for life as we are having them sit on death row for a decade or more. Plus I think the day is coming where the Supreme Court will declare capital punishment "cruel and unusual" anyway.
Interesting (sort of) thought, but unworkable, as no one will ever draft such an amendment, at least not one that will get any substantive notice.
Just a thought but maybe he sees the forest more clearly.
My thinking goes beyond abortion; what if a super "conservative" SCOTUS was on the bench and they then used the very same methods the left has used to advance that agenda.
Most likely it would be things I agree with, but two wrongs don't make a right and perhaps we'd be better served not throwing constitutional interpretation into the mix. I'd much rather it be viewed a document that limits what the feds can control rather than a document that somehow entitles the feds to control something.
Merely a thought.
Your instincts are correct. The Constitution does indeed protect the right to life, even for the unborn.
As already pointed out previously on this thread, the whole purpose of the Constitution is to do just that:
I'm surprised Scalia missed that.
That's why I always cringe when folks say we need "conservative" justices as the solution to judicial tyranny. No. A tyrant is a tyrant, even if he is "good." We need courts that follow the Constitution, understand the intent of the Constitution, and apply the law without prejudice.
When it comes to abortion, the Constitution is clearly on the side of life, liberty, and the security of the unborn. One of its primary purposes is to protect our posterity.
Unlike for liberals, there's nothing a "conservative" justice must invent here on abortion. The Preamble provides the interpretation of the Constitution already.
Scalia misses the forest because he ignores this clear guide.
LOL, she's also one of Scalia's best friends.
The Preamble lays out some general objectives. Article I lays out the enumerated powers that can be exercised in pursuit of those objectives. What enumerated power of the national government do you see as being appropriate to accomplish that objective?
Of course my idea of the constitution being read for what it is will never happen, but again, just some thoughts.
That wasn't my question. In your opinion, would it be constitutional for a state to repeal its law against murder or rape?
It is an absurd scenario; but yes, it would be consitutional.
The Constitution says each PERSON should have due process of law, so it really doesn't sound a if they were against capital punishment, as long as there was DUE PROCESS. What do you think?
"..nor shall any State deprive any PERSON (EMPHASIS MINE) of life, liberty, or property, without due process of law;.."
Also, an innocent preborn baby doesn't even get due process.
It's so nice to have literate discourse.
Because therein lies the answer to whether or not abortion should be left to the states.
It isn't absurd at all. If Roe is overturned and the abortion decision is left to the states, the federal government would be allowing the states to make the decision whether or not to legalize murder. Many would argue that this is violative of the constitution and therefore outside of the state's power.
How could you argue that it is unconstitutional?
Do you believe that the individual states should have any rights? There is nothing in the Constitution now that compels states to outlaw murder.
"Life, liberty, and the pursuit of happiness" & "due process" for sure.
And the individual states can also protect rights.
Sure they can. But the states cannot violate one's constitutional rights. Thus the argument goes that state's cannot constitutionally legalize abortion (or murder or rape, etc) :)
I might see a case for disagreement in the semantics of murder. If that's the issue, I'm left to wonder where we're going with this "rape" thing.
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