Thomas Jefferson (author of our nation’s founding document) “To consider the judges as the ultimate arbiters of all constitutional questions (is) a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.”
Justice Scalia: I think, I didn’t say that if there is to be an evolution of standards under the Eighth Amendment, it’s up to the legislature. No, the legislature can’t change the Eighth Amendment. I’m saying the Eighth Amendment means what was cruel and unusual and unconstitutional in 1791 remains that today. The death penalty wasn’t, and hence it isn’t, despite the fact that I sat with three colleagues that thought it had become unconstitutional. Executing someone under eighteen was not unconstitutional in 1791, so it is not unconstitutional today. Now, it may be very stupid. It may be a very bad idea, just as notching ears, which was a punishment in 1791, is a very bad idea. But the people can change, the people can eliminate those stupidities if and when they want. To evolve, you don’t need a constitution. All you need is a legislature a ballot box. Things will evolve as much as you want. They can create a right to abortion. They can abolish the death penalty. They can legitimize homosexual sodomy. All of these things, all of these changes can come about democratically. You don’t need a constitution to do that. And it’s not the function of a constitution to do that.
Justice Scalia: Oh, substantive due process does. I thought I made it clear I don’t believe in substantive due process. The basis of Lawrence, of the Lawrence opinion was that the government has no business making moral decisions regarding sex. I predict that that rational will not survive. Because there are just a whole bunch of laws from the very beginning of the world, that every society I know of has enforced. You can start with bigamy. This is simply a moral disapprobation of sexual activity deeply felt by the society. And it has never been unconstitutional for the society, for the majority, to impose that judgment. Now maybe it should be, but don’t tell me that that’s what the American Constitution has required. It might be a good idea. Persuade your fellow citizens that government should make no moral judgments. It’s simply not our history.
“The Constitution, on this hypothesis, is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please. It should be remembered, as an axiom of eternal truth in politics, that whatever power in any government is independent, is absolute also; in theory only, at first, while the spirit of the people is up, but in practice, as fast as that relaxes. Independence can be trusted nowhere but with the people in mass. They are inherently independent of all but moral law.” — Thomas Jefferson, letter to Judge Spencer Roane, 1819.
Patrick Henry, “Power is the great evil with which we are contending. We have divided power between three branches of government and erected checks and balances to prevent abuse of power. However, where is the check on the power of the judiciary? If we fail to check the power of the judiciary, I predict that we will eventually live under judicial tyranny.”
“The judiciary of the United States is the subtle corps of sappers and miners constantly working under ground to undermine the foundations of our confederated fabric. They are construing our constitution from a co-ordination of a general and special government to a general and supreme one alone.” —Thomas Jefferson
“The Constitution on which our Union rests, shall be administered by me [as President] according to the safe and honest meaning contemplated by the plain understanding of the people of the United States at the time of its adoption — a meaning to be found in the explanations of those who advocated, not those who opposed it, and who opposed it merely lest the construction should be applied which they denounced as possible.” —Thomas Jefferson
Sessions was on Levin’s show tonight. Praised Scalia as a man of faith and said we need more of that in Washington since that truth is the underpinning of our Constitution.