Posted on 05/02/2007 1:30:21 PM PDT by presidio9
If Americans want to secure new constitutional rights, they should look to the legislative branch, not the Supreme Court, Justice Antonin Scalia said last week.
“If you want new rights, create them by statute,” Scalia said April 27 in a speech at the University of Delaware. “If you want new constitutional rights, then you need to amend the Constitution.”
Defending his “originalist” approach to interpreting what the framers of the Constitution intended, Scalia said too many Americans, from the man in the street to academics and judges, mistakenly consider it to be a document that must evolve to meet the changing norms of society.
“The professorate, the bench and even the American people have all been seduced into believing in, and I hate the term, ‘a living Constitution,’” he said.
“The Constitution is not a living organism,” Scalia added. “It’s a legal document.”
Scalia said the Constitution was properly revered by many as “a rock to which society was safely moored” before changes began occurring under former Chief Justice Earl Warren.
Mocking the idea that the prohibition against cruel and unusual punishment should be interpreted through “evolving standards of decency that mark the progress of a maturing society,” Scalia warned that the flexibility that some desire in interpreting the Constitution could have unintended consequences.
“You can’t assume that it will always create new rights and not eliminate old ones,” he said.
“It’s hard to give a right to one person without affecting somebody else,” Scalia added, noting that a woman’s right to an abortion means the end of life for a fetus.
Outside the theater where Scalia spoke, handfuls of those on either side of the abortion debate staged silent demonstrations. They were joined by two individuals wearing orange jumpsuits and black hoods protesting the treatment of detainees at the Guantanamo Bay military base in Cuba.
Among those in the audience was Scalia’s son Matthew, who is an instructor in University of Delaware’s Department of Military Science.
Scalia also noted that the originalism that guides him and fellow conservative Justice Clarence Thomas does not always mean a conservative outcome.
“Originalism is a two-edge sword,” he said, noting that he cast the deciding vote in a ruling upholding flag-burning as a right of expression guaranteed by the First Amendment.
Scalia said the idea that Constitution should be subject to constant change is illegitimate, especially because there are no criteria for determining how it should change, and because the task is left to unelected judges who have no right to decide, for example, what evolving standards of decency are.
“Even if it is true, the Court shouldn’t be in the business. The Constitution should be amended across the street,” Scalia said, referring to Congress.
“I’d rather the people rewrite the Constitution rather than nine aristocrats do it, but ideally, it should be neither one,” he said.
Thanks for the info. Golly, that was BEFORE I was born so, though I didn't know it, I was born Constitutional-less...
OK, I'll bite.
What's a right that can be created in the law?
Yes, but if they're created by JUDGES, then the People have been bypassed. The new right(s) should have been created by the Legislative branch, as representatives of the People. Anything else is UN-Constitutional, and since we have 'anything else' happening with uncanny repetition, then the rational bottom line is that we are a People without a functional, operating Constitution.
Wrongo. We have many rights which are not listed in the Constitution. See the 9th Amendment. The government has limited powers (or did until the courts threw out the Constitution in the 1930s).
A legislature could create a right to food, for example. I don’t support such a right, but that is an example. Congress has created a right not to be discriminated against due to race, sex, etc. These are not natural rights, but they have been created by legislative act. I oppose, and argue that the courts cannot create or derive rights that are not legislated, however.
The other reason requires not probable cause, but reasonable suspicion. Usually this is the result of a traffic stop...
Because half of the electorate, and all of the socialists in the establishments of school, media, government and society decided that the ends justify the means and the law means nothing if it does not produce the desired pro-abortion, pro-homosexual, pro-environment, pro-Communist, anti-Christian, anti-capitalist, anti-military, anti-gun result.
Quote, ‘My argument whenever I run into a “living Constitution” believer is “Would you lease a car from a dealer who insisted that the lease contract was a ‘living document’ that could change on his whim?” ‘
That is an invalid, uneffective argument. The problem with your making such an argument presupposes that liberals are capable of this thing called “logic”, which they are not. The only respond to raw emotion.
This is why you can’t reason with a liberal. Logic merely confuses them.
There's the problem. I agree, we (the People) have rights not enumerated in the (defunct) Constitution. But the 9th Amendment is IN the Constitution, which we all seem to agree was "thrown out"...no longer applicable...though we may not all agree on the exact year that happened.
If the Constitution (and the 9th Amendment) did still apply, however, then we (the People) could enumerate any previously-unenumerated rights in that Constitution, through our elected Representatives or by amending that Constitution. JUDGES have been doing that for us, however, WITHOUT consulting us, and THAT'S what's wrong. They have no business doing that IF the Constitution were still functional and operative (which, agreed, it's NOT).
Examples of such unenumerated rights that COULD, theoretically, be created properly are limited only by the imagination of the People...
1-Right to college education on demand. Those (People) who cannot afford one, will have one provided to them. Apply to the Dept. of College Education...
2-Woman's right to buttered popcorn on demand. Those (Women) who cannot afford it, will have some provided to them. Apply to the Dept. of Buttered Popcorn.
3-&etc...
A "right to food" places upon someone else an obligation to provide said food if someone can't provide their own.
Any "right" that imposes an obligation on someone else is not a "right".
Q: If you call a dog's tail a "leg", how many legs does a dog have?
A: Four. Just because you refer to a tail as a "leg" doesn't make it a leg.
I cannot agree with you more on the definition of a right. That said, this sort of “right” is created often by the legislatures of the states and Congress, and creates involuntary servitude for the rest of us.
Your definition of what is a right (or ought to be) and mine are right in alignment.
Like the dog’s tail into a leg, just because they call it a right don’t make it a right.
but if you get the benefit, it looks, walks and quacks like a right... you know the rest.
Well, that’s where the enumerated (limited) powers part comes in. I certainly don’t see anything about buttered popcorn (or popcorn of any flavor) in the Constitution do you?
“It’s a contract with an amendment process.”
I like that. Scalia himself said once the constitution is “an enduring document” as opposed to a “living constitution”. How is it though, that the politicians of the day (however ill advisedly) realized they needed to pass a constitutional amendment “prohibition” to outlaw booze, but there are scant few amendments since that time regulating toilets or light bulbs?
He just described the state of Congress 180 years after his death. What a visionary.
yikes...thanks...he could be talking about how we are acting today....
Here's one for you. Scalia voted with the majority in Golzales v. Raich. California legalized medicinal marijuana, the feds said no, and Scalia agreed.
However, look back to the Alien and Sedition acts, and the response given by James Madison, the architect of the Constitution. He authored the Virginia Resolution,
That this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact, to which the states are parties; as limited by the plain sense and intention of the instrument constituting the compact; as no further valid that they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.Basically, the federal government is only the result of a compact between the states, and thus the states have a right to fight against the federal government assuming any power not granted to it in that compact. Talk of secession first happened then, over 60 years before the Civil War.
“Mocking the idea that the prohibition against cruel and unusual punishment should be interpreted through “evolving standards of decency that mark the progress of a maturing society,” Scalia warned that the flexibility that some desire in interpreting the Constitution could have unintended consequences.”
That part of the statement, “mark the progress of a maturing society” is a real rub. Ours is a society that has returned to childishness and narcissism, not maturity. We seem to prefer slavery to sexual deviantism and irrational belief in the good ness of man than to the Truth!
The 18th is the one I use as my argument when battling leftists -
“Why was the 18th Amendment required?”
Because the federal government lacks the authorization to make such laws without an Amendment.
How anyone can read the enumerated powers in context with the 10th’s “all other powers belong to the states and people” and determine that 90% of the federal laws are still Constitutional... well, the answer I usually get is that if the USSC hasn’t said they aren’t, then they aren’t.
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