Wednesday, August 31, 2005

Scalia on Morality

According to, at a recent presentation "Justice Antonin Scalia blasted what he called "judge moralists" and the infusion of politics into judicial appointments":
Speaking before a packed auditorium at Chapman University in Orange, Calif., Scalia said he was saddened to see the Supreme Court deciding moral issues not addressed in the Constitution, such as access to birth control, desegregation and the use of public floggings and the pillory to punish criminals. He said such questions should be settled by Congress or state legislatures beholden to the people.
Okay, so he actually said "abortion, gay rights and the death penalty", but from a constitutional perspective what's the difference? (A lesson in the importance of framing your issues.)

I guess Scalia would interpret this language, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people", to mean that the people may have additional rights beyond those enumerated in the Constitution, but that there is no constitutional remedy for the violation of your rights unless they are specifically enumerated in the Constitution. Some might doubt that the Founding Fathers would agree with that interpretation, but who cares what they would have thought, right? We're all textualists now, so we get to reinvent the meaning of the text in accord with what we contend the words mean.

Scalia proceeded to defend his "immoralist" approach to constitutional interpretation, explaining that Supreme Court Justices should feel free to invent "constitutional" doctrine from whole cloth when it works against the common man, citing his own recent opinion expanding the doctrine of sovereign immunity - a concept completely absent from the Constitution. Oops - no, he didn't actually say that. I wonder why he forgot.

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