Scalia On Judges Judging Morals

[MMMMMM]

Interesting little AP report here.

(excerpt)[b]...Speaking before a packed auditorium, Scalia said he was saddened to see the U.S. Supreme Court deciding moral issues not addressed in the Constitution, such as abortion, assisted suicide, gay rights and the death penalty. He said such questions should be settled by Congress or state legislatures beholden to the people.

"I am questioning the propriety indeed, the sanity of having a value-laden decision such as this made for the entire society … by unelected judges," Scalia said.

"Surely it is obvious that nothing I learned during my courses at Harvard Law School or in my practice of law qualifies me to decide whether there ought to be, and therefore is, a fundamental right to abortion or assisted suicide," he said.

Scalia also railed against the principle of the "living Constitution," saying it has led the U.S. Senate to try to appoint so-called politically "moderate' judges instead of focusing on professional credentials and ability.

"Now the Senate is looking for moderate judges, mainstream judges. What in the world is a moderate interpretation of a constitutional text? Halfway between what it says and what we'd like it to say?" he said, to laughter and applause.

"Once one adopts this criteria, of course, the Constitution ceases to perform its principal function, which is to prevent the majority from doing what it wants to do."

Scalia didn't make any direct references to the looming confirmation battle for Supreme Court nominee John Roberts, but he did allude to it as he spoke of the politicizing of the judicial process.

"Each year the conflict over judicial appointments has grown more intense," he said. "One is tempted to shield his eyes from the upcoming spectacle."...(end excerpt)

Comments anyone?

http://www2.presstelegram.com/news/ci_2984562

[KDawgCometh]

I think looking at the constitution as a "dead" constitution is wrong. By looking at it as a "living" constitution we have been able to address modern issues that have come up. WHile the Federalist Papers addressed slavery, the constitution didn't address until the 13th and 14th amendmants. THe income tax amendmant was neccessary because there was no logical way for us to keep obscenely high tariffs if we were to enter global trade full time in the early part of the 20th century.

NOw, does that mean that assited suicide, gay rights, and fetal rights belong in the judicial arena, I cannot say. I think that they do fall under human rights and that is addressed by the constitution and bill of rights.

The constitution needs to be able to live so that it can address situations that may crop up in the future that wasn't predicted in 1787. The fact that it has been able to be a living document has prevented a lot of civil strife in this country and more radical means of changing the constitution

[MMMMMM]

I agree the Constitution needs some mechanism to change with the times, but what about the Amendment process? That's the purpose for which it was designed, so why do we need more than that for that purpose? And doesn't opening the door to very wide interpretation and wide definition, or to decisions stemming from the personal morals of the the Supreme Court Justices, in essence put at risk the very foundation of our legal system?

[jokerthief]

[ QUOTE ]
I agree the Constitution needs some mechanism to change with the times, but what about the Amendment process?

[/ QUOTE ]

But the amendment process is too hard!

[KDawgCometh]

[ QUOTE ]
what about the Amendment process?

[/ QUOTE ]


not all legal issues can be solved through amendmants. THe law is very much shades of grey and not just black and white


edit: I do like the question that is posed though. This is something that provokes thought

[sam h]

[ QUOTE ]
And doesn't opening the door to very wide interpretation and wide definition, or to decisions stemming from the personal morals of the the Supreme Court Justices, in essence put at risk the very foundation of our legal system?

[/ QUOTE ]

Here is the Devil's Advocate argument in brief. I am personally of mixed feelings.

1) How would you determine the original intent of the framers when there is not a consensus among historians on many major points? What sources are fair game for doing this? Should judges root around in peoples' diaries and the like in order to do their job?

2) What if the original intent of the framers was precisely that the constitution establish major principles that would then be flexibly adapted by later generations?

3) If anything, our legal tradition a common-law tradition, in which the value of precedent and established patterns of legal adjudication is very high. Many legal principles and settled rulings that are part of our day-to-day lives derive from precedent. Should we now just overturn all con law precedents that don't jibe with the original intent after, in many cases, decades of use?

4) Many scholars of the court argue convincingly that supreme court jurisprudence in America has always been intensely political, calling into question the common tendency among Scalia-ites to decry the ruination of an idealized apolitical system of jurisprudence. Maybe a politicized judiciary is basically unavoidable, and maybe thats not such a bad thing in the end.

[lehighguy]

The question isn't so much original intent, but original meaning. After all, intent can be impossible to determine from a document. The recent campaign finance legislation is seen by some as intended to clean up the system and by others as an attempt to restrict the kinds of fundraising and campaining that tends to hurt incumbents. Was congresses's intent pure or malicious. You can't really tell. In fact, every legislator had a different intent when he/she voted yea or nea. Intent can't be devined.

In the absense of intent we look for original meaning. We look to historical texts to determine what the words and phrases used in that time meant. To further explain it we look at how the law was interpreted when it was first written (say the first 50 years). While this is not an exact science it can be done pretty well on a large variety of cases. For a good example see Thomas's dissent in Kelo vs New London this year.

It's not perfect, but it is certainly a more solid method of dealing with constitutional law then any others I've seen. Scalia is one of the few who I've actually seen apply a specific method in interpreting the constitution irregardless of the case involved. A lot of the other judges just seem like thier winging it.

I've never met someone with a serious objection to this method. Most objections boil down to one of two things:
1) That method won't result in my political objectives being achieved.
2) It doesn't make the constitution flexible enough.

Number 2 is the only serious one, and I think the amendment process has done a pretty good job. Most big changes like letting women vote were able to be added to the constitution. Hell, for a brief time you could convince people to ban booze.

[elwoodblues]

[ QUOTE ]
I've never met someone with a serious objection to this method

[/ QUOTE ]

You must not get out much [img]/images/graemlins/smile.gif[/img]


I'm just curious where in the Constitution Scalia find the provision claiming that there should be an original intent interpretation of the document.

Not only do I think the concept itself is flawed, but its application is often flawed as well. You will often see decisions authored by Scalia hinge on a definition he found in a 19th century dictionary. That seems a bit ridiculous to me.

[sam h]

[ QUOTE ]
The question isn't so much original intent, but original meaning. After all, intent can be impossible to determine from a document.

[/ QUOTE ]

I agree that intent is very difficult to discern. But I believe that the "meaning" of the document, as well as most other historical documents, is also very difficult to discern without recourse to intent. A historiography based on the idea that written evidence should be considered "authorless" is going to be fundamentally flawed. Very few serious historians, the people who are best practiced in thinking about these questions, would take this approach.

[ QUOTE ]
I've never met someone with a serious objection to this method.

[/ QUOTE ]

See my point above, as well as the argument Elwood makes (as I did in the previous post too) that perhaps the text was not intended to be interpreted through an "original meaning" approach.

[Zygote]

in what way does he think congressmen are qualified? why does he think voters are qualified? Judges are deemed as the most objective and highly regarded thinkers with respect to legal issues. We are only discussing the legality of these issues from the federal or state perspective anyways. So who better to decide legal issues? Legal insight is the only useful and valuable guide for these issues. What qualifications do you think are necessary?