U. S. Supreme Court Justice Antonin Scalia told an audience in Arizona that some of his liberal colleagues were inventing or granting new rights that were never intended by the Founders.

When Justices Antonin Scalia and Stephen Breyer squared off in a conversation about “The Principles of Constitutional and Statutory Interpretation” at the Rehnquist Center at the University of Arizona on Monday, October 26, few in the audience were prepared for the forceful and persuasive arguments for “originalness” presented by Justice Scalia. The opposite view, that new rights are necessary to allow the Constitution to “evolve” along with society, was taken by Justice Stephen Breyer.

Pete Williams of NBC News and the moderator opened the conversation by asking Justice Scalia “Why don’t you just call ‘em as you see ‘em?” 

Scalia responded by indicating that making decisions without a frame of reference to what the Founders intended would lead to “the end of democracy”.  Once we abandon their intentions and substitute our own, Scalia said, “we are at sea.”  Some on the court, Scalia continued, insert their own feelings and beliefs and values into the decision-making process, in order to create a “happier” society. 

When Breyer interjected that Sandra Day O’Connor’s decision in a recent affirmative action case reflected the concerns that businesses, the military, labor unions and universities had in being unable to make good decisions under the current law, Scalia responded, “We’re not here to make a happier society.  We’re here to determine what the people were thinking when the 14th Amendment was ratified.”

“The fight is about the Supreme Court inventing new rights nobody ever thought existed,” said Scalia. “Right to abortion? Come on!  Nobody thought it violated anything in the Constitution for 200 years. It was criminal.”  The same was true of homosexual sodomy, he added. (The Court has struck down state laws that banned both abortion and sodomy.)

For example, in Roe v Wade, a “right to privacy” was invented by the Court. In a dissenting opinion, Justice Potter Stewart noted that "no such general right of privacy" can be found in the express language of "the Bill of Rights" or "any other part of the Constitution."

Scalia went on to point out that if “the Constitution will mean whatever the [majority] of the American people want it to mean, [then] that is not what a Constitution is for. The whole purpose of a Constitution is to constrain the desires of the current society.” 

“Originalism”, which is Scalia’s approach, results in finding many of the answers the Court seeks, while Breyer’s approach consists of playing it by ear, and looking up at the ceiling for those answers. This, Scalia said, “yields no answers”. 

The trouble with an evolving Constitution, according to Scalia, is that society would be adhering, not to the ideals of the Founders, but instead to the ideals of a revolving group of nine people sitting on the Supreme Court bench. 

Scalia pointed out that if the 14th Amendment had a footnote indicating that the meaning of the phrase “equal protection of the laws” would be whatever the Supreme Court decided at the time, the American people would never have voted for it. 

Breyer responded that such an approach would make the Constitution too confining and restrictive, too rigid and inflexible, that people won’t be “able to live under it.” 
 
In a strongly worded answer to the excessive need to be “flexible”, Scalia said, “[There's] the argument of flexibility and it goes something like this: The Constitution is over 200 years old and societies change. It has to change with society, like a living organism, or it will become brittle and break. But you would have to be an idiot to believe that; the Constitution is not a living organism; it is a legal document. It says some things and doesn't say other things.”

A Scalia definition of  “living constitution” cited in encyclopedia.thefreedictionary.com states, “[Proponents of the ‘living constitution’ approach want matters to be decided] not by the people, but by the justices of the Supreme Court . . . They are not looking for legal flexibility, they are looking for rigidity, whether it's the right to abortion or the right to homosexual activity, they want that right to be embedded from coast to coast and to be unchangeable.”

The same online encyclopedia quotes Scalia as saying: ''If you think aficionados of a living Constitution want to bring you flexibility, think again.... You think the death penalty is a good idea? Persuade your fellow citizens to adopt it. You want a right to abortion? Persuade your fellow citizens and enact it. That's flexibility." meaning these things should be accomplished through legislation.

When challenged by Scalia to tell the audience how he comes to a decision, Breyer said “I have objective ways to determine my position. And I write them down, and people can see them, and read them, and disagree with them, and that’s useful in a democracy.” 

By then, of course, it’s too late.

Bob Adelmann holds a Master's degree from Cornell University with a major in
 economics and finance.  He is an entrepreneur and teaches marketing
strategies to small business owners around the country.  He is a life member
of the John Birch Society.  Email:  BobAdelmann@msn.com  Website: 
www.small-business-marketing-strategies-that-work.com

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dobropet said:

... Amazing, isn't it? How little people understand the meaning of such a document, and yet, they are appointed to such positions of authority that Americans so heavily rely upon to secure their rights. Truly, if a society is ever to be free, determinate upon the people themselves, opinions restricting their rights as such should not be tolerated any more than the individuals promoting such limited ideas.

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November 09, 2009
Votes: +5

Stophel said:

... I never cease to be amazed at the aversion "conservatives" have towards the "right to privacy". Because the phrase is connected to the Roe vs. Wade decision, that means that the whole notion of privacy is null and void? The Fourth Amendment means nothing? Unwarrented searches and seizures are OK, since they are done in the name of "national security"??? The ninth amendment means nothing, and the government can do whatever it wants? I hear "conservatives" say "why, you don't have anything to hide, do you?" But then, suggest doing something like registering firearms, or tracking/taxing private transfer of property and they scream "4th amendment!" "It's none of the government's business!". Yes, there is a right to privacy, but the application of it to Roe vs Wade was wrong. You have the right to privacy, but not the right to murder a child. The problem isn't right to privacy, but that the court dehumanized the child, making him simple property. If this were property we were talking about, yes, you have the right to do with it as you wish, privately. But this is a human being. Don't throw out the basic notion of the right to personal privacy simply because of its misuse to allow abortion.

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November 09, 2009
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RP said:

Constitutional MISinterpretation Scalia responded by indicating that making decisions without a frame of reference to what the Founders intended would lead to “the end of democracy”. Democracy? What democracy? I distinctly remember reading that, during the debates, the Founders outright rejected an idea of a democracy. They despised democracies. What they gave us was a republic. It doesn't take a rocket scientist to figure out the differences between the two. Scalia is one of the BETTER justices in recent history. He has a better understanding than most others, and yet, even HE doesn't get it! Forget Ron Paul for president. I'd like to see him on the Supreme Court!

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November 09, 2009
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Tizziec said:

IS he right? When teh constitution was debated, created, and argued in the fight for ratification, no where did the government assume the right to control social order, but rather they looked to create a centralised organization that would act as a go bhetween for states, and a representative entity of the US to the world. They were very specific about this and very sure that the way to make it work was to allow the bulk of social laws to come from the states. Yes, there was major compromise for the sake of unification, but these were not compramises taken lightly or without a heavy heart. They decided early that the govt would be limited in it's power to "lord over" the people of the nation. What is not expressly afforded as a power to the fed Govt is instantly passed on to the states, individually, to decide. The Supreme Court is bound by this central idea of the constitution when making desisions. It is not JUST the laws, but the ideal of states VS fed they have to weigh. If it is a case that cannot be atributed to the fed govts jusrodiction by this idea, then they should not hear it to begin with. This is not a dated ideal, but an ideal that grounds the formation of a central, more powerful federal govt. In order for our system to work, the minds in charge MUST pass over the desires of the public and do what is best for the total. So much thought and effort was put into denying factions direct power, and protecting the govt from wavering desires of the public.

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November 13, 2009
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Jim Gerard said:

... It always mystifies me when I hear people advocating change to the constitution. It is the basis of our freedom - changes would modify that. Many people think we should change the Constitution every time there is a new problem. If we will study and learn the Constitution, it is very clear that it is the guideline for a free society. Anything not listed and designed in the Constitution is up to individuals within the laws, or through states if common among the people.

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November 16, 2009
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