MSNBC has an interesting profile of Scalia's quest for the CJ chair. It has two interesting quotes from Scalia.
First, he says (in true federalist fashion):
"What was ‘cruel and unusual’ and unconstitutional in 1791 remains that today. Executing someone under 18 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...eliminate those stupidities if and when they want. ...All you need is a legislature and the ballot box."
He said Americans also can create a right to abortion or can legitimize homosexual sodomy democratically, through their state legislatures and Congress, if they want to do so.
But then he goes on to say:
When judges become lawmakers reflecting the will of the majority, Scalia said, "We have rendered the Constitution useless."
That's exactly right, Justice Scalia. Judges are there, in theory, to provide a check on democracy and the tyranny of the majority. So why are you clinging to deomcratic principles in the first instance, claiming the wisdom of the legislature and the ballot box, while on the other hand insisting on judicial independence from said popular vote? Which is it?
(Source of quotes: MSNBC)
5 comments:
I don't trust the part of that last passage that's not in quotes: When judges become lawmakers reflecting the will of the majority, MSNBC's words rather than Scalia's. I haven't been able to find a transcript, but working assumption is that Scalia said something more like 'when judges become lawmakers frustrating the will of the majority.' Whatever the (many) demerits of Scalia's judicial philosophy, neither obvious incoherence nor a fear of judges reflecting the will of the majority are ordinarily among them. It's more likely that the reporter screwed up than that Scalia casually repudiated a generation-long commitment to majoritarianism.
well, the video is available on C-SPAN here:
rtsp://video.c-span.org/project/c04/c04031405_scalia.rm
so you should be able to judge for yourself. I for one have a dinner/breakfast engagement but I shall check it out later.
Here's the direct quote. It's not out of line with what was written:
"The bill of rights is meant to protect you and me against...who do you think? The majority! My most important function on the supreme court is to tell the majoirty to take a walk. And the notion that the justices ought to be selected because of the positions that they will take that are favored by the majoirty is a recipe for the desctruction of what we've had for 200 years."
...just reporting it as a heard it.
Even if the second quote above is correct, I'm not sure I see a contradiction. Scalia doesn't claim that he likes or has faith in the majority, above. Only that within the constitution the polity in question can operate fairly freely within the context of the constitution. He merely broadens what he believes to be outside the purvue of the consitution (abortion, death penalty, etc). I'm not sure the second quote jives with what I know about Scalia, but the judiciary shouldn't be in the habit of enacting the preference of any group beyond its relatively simple mandate to keep the legislature from overstepping its bounds, even if the judge is in accord with a majority's opinion.
I saw Scalia speak on campus three years ago, and he basically said that he does not think that the Constitution is a living document, as the rest of humanity and third-grade social sciences classes think. So he, as a judge, has no power to change it. But lawmakers do. I guess he would be an extreme Locke-ian, because he thinks the branches of government should be entirely separate in their aims and workings. This doesn't mean he doesn't like democracy as a whole, he just thinks that democracy works in these very particular ways.
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