Scalia May Be Right
Scalia made a comment that goes to the heart of something I've been pondering over the last couple of months.
The 70-year-old justice said the public, through elected legislatures _ not the courts _ should decide watershed questions such as the legality of abortion.
A couple of months ago, I read an article in the Economist that pointed out that Europe doesn't go through the heartwrenching debates concern abortion or gay rights etc. He made the point that these issues had been decided in the countries' legislative bodies and not the courts. After reading that article, I wondered if we were making a mistake.
When a legislative body decides an issue, it is done by a representive body and has more of a finality to the issue than when it is decided by a select, unelected few.
This issue is highlighted by the actions of South Dakota regarding Abortion. South Dakota has a process in place where a law can be placed on the ballot to be overturned by gathering petitions. it is a step that I believe should be taken along with the court process. If South Dakota rejects the draconian actions of the legislature, it will IMHO carry more weight than a Supreme Court decision.
2 Comments:
The problem which Scalia sidesteps is that our elected legislatures have very rarily exhibited the courage to address civil rights issues on their own. That's why courts have so often had to step in.
That said, I agree about the value and weight of citizens stepping in and forcing the issue, as long as it's all done within the framework of our constitution and the rights it preserves for all of us regardless of race, creed, gender or whatever other distinguishing characteristic one wishes to cite. Which is to say that tyranny of the majority is an ever present danger, and one which the Founders foresaw when they wisely created the courts and made the justices unelected and lifetime terms. It's all about balance of power.
Scalia's position demonstrates the confusion of just what Federalist Society/AEI types mean by "originalism." Deference to the original understanding of the Constitution, and deference to the will of contemporary elected legislatures, are two different things. When it comes to (say) Fourth Amendment restraints on search and seizure mean, the political judgment of Congress be damned.
Another problem with Scalia's Originalism Lite is that it's consistent with a view of executive war powers comparable to receiving a fasces from the Roman Senate. His view of the "inherent powers" of the C-in-C owe an awful lot to the kind of "judicial activism" in Quirin and Curtiss-Wright.
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