“The republican principle demands that the deliberate sense of the community should govern the conduct of those to whom they intrust the management of their affairs; but it does not require an unqualified complaisance to every sudden breeze of passion or to every transient impulse which the people may receive from the arts of men, who flatter their prejudices to betray their interests.” ― Alexander HamiltonWe the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitutiton for the United States of America.
That is a statement of the deliberate sense of the community. Hewing as close as possible to that deliberate sense of what is best in the long run, after we are all long gone, is the best that a legislature - let alone a judge - can do.As Justice Scalia pointed out, making up the constitution’s meaning rather than hewing to its original provisions does not provide flexibility but the reverse. We can’t sort out abortion law because Roe v. Wade destroyed flexibility. The legislatures can’t resolve the issue democratically.
bump-O!