Scalia loosens up
By Jeff Jacoby, Globe Columnist
boston.com
"...And where did European courts get the idea that it was up to them to make binding policy on controversial moral subjects? From the US Supreme Court, which in recent decades has maintained that the Constitution is a ''living" document whose meaning evolves over time, and that it is judges who are to decide when there has been an evolution and what that evolution requires.
But for most of American history, observed Scalia, it was understood that the Constitution's words were to be read in the light of the Framers' intent and the nation's legal traditions -- the whole point of putting the words in writing was to prevent fundamental change, not to facilitate it. For the Constitution to say something new required an affirmative democratic act: an amendment. Judges could not unilaterally give the text a meaning it had never had before. That is why it took the 19th Amendment to extend the vote to women in 1920, even though the Constitution already provided for ''equal protection of the laws." If the Equal Protection Clause didn't guarantee female suffrage when it was adopted, it didn't guarantee it in 1920, either. Only the people could change that fact, not the courts.
These are not new arguments, of course. But it is one thing when politicians and pundits deplore activist judges who claim to discover rights in the Constitution that had lain undiscovered for 200 years. It is something different when a jurist of undoubted brilliance declares flatly that ''judges are unqualified to give the people's answer to moral questions." Does a woman have a natural right to an abortion? May someone be helped to take his own life? Should a jury sentence a mentally retarded murderer to death? Such dilemmas are inescapably political, and the more judges presume to resolve them from the bench, the more politicized the judiciary becomes. Hence the bile and bitterness that now drench the judicial nomination process..." |
