24 July 2009

Words to ponder

One major theme of this site is that the US Constitution is dying, as is the United States itself, if not actually dead. Here we see a first-tier legal scholar support this theory. “The Constitution that I interpret and apply is not living, but dead.” has become Justice Scalia’s best known saying, perhaps his signature line. I recommend attention to his warnings.

Antonin Scalia, Vigilante Justices: The Dying Constitution
If the courts are free to write the Constitution anew, they will write it the way the majority wants; the appointment and confirmation process will see to that. This, of course, is the end of the Bill of Rights, whose meaning will be committed to the very body it was meant to protect against: the majority.

He should listen to what he says.

Scalia’s logic used in Heller would lead him to endorse the outcome of Roe, a decision which he condemns on the grounds that the “Constitution says nothing about abortion.” Well, it also says nothing about a right to keeping handguns for self defense– so which is it? Indeed, the partisanship of Justices can sometimes be quite appalling, and just as Scalia is willing to violate his own principles as a means to a right-wing end in the Heller case, so too might a majority left-leaning court be willing to adopt an “textualist” position for the purpose of overthrowing Heller.