Scalia loves the founding principles (except for that inalienable rights thingy)
by digby
He’s just letting it all hang out now:
In a speech titled “Mullahs of the West: Judges as Moral Arbiters,” the outspoken and conservative jurist told the N.C. Bar Association that constitutional law is threatened by a growing belief in the “judge moralist.” In that role, judges are bestowed with special expertise to determine right and wrong in such matters as abortion, doctor-assisted suicide, the death penalty and same-sex marriage.
Scalia said that approach presents two problems: Judges are not moral experts, and many of the moral issues now coming before the courts have no “scientifically demonstrable right answer.”
As such, he said, it’s a community’s job to decide what it finds morally acceptable, not the courts’.
The justice’s 35-minute speech at the bar association’s annual meeting was met with two rounds of applause, laughter and, afterward, some pointed questions.
During his speech, Scalia acknowledged that his opinion is not universally shared. Many legal scholars and judges – including some of his colleagues on the Supreme Court – believe in a “living Constitution” that reflects “evolving standards of decency.” This also has given rise to what Scalia decried as a sprawling application of the provisions of human rights and equal protection under the law.
In response to a question, he said he does not ascribe to a Constitution locked away from change. The law must evolve to deal with new phenomena, he said, but it should do so while remaining firmly moored in its founding principles. And most moral issues, he added, don’t qualify as new.
I find this so interesting. What do you suppose he thinks human rights and equal protection under the law are exactly. White, straight guys guys only?
Well… kind of. He has written that he believes that people should be “protected from” gays and that racism is the kind of “moral issue” that judges have no business involving themselves in. Really:
During a question-and-answer period that followed the judge’s speech, Sarratt asked Scalia if he would have taken a similarly hands-off approach to “Brown v. Board of Education,” the legal cornerstone of school desegregation across the country.
Scalia said he would have voted with the majority on the case to create more educational opportunities for blacks. He added, however, that “a good result” doesn’t make for good law. Had the courts not interceded, he said, state leaders would have eventually removed the racial barriers.
Gee, I wonder if they would have done it by now or if we’d still be “evolving.” After all, it took almost a century to get from freeing the slaves to Brown vs Board of Education.
There are marriage equality advocates who feel confident that it will be voluntarily legalized in all states without needing any constitutional opinion to make it happen. The idea is that it’s better to have social acceptance first so that the right is secured by consensus. So it’s not as if Scalia is completely alone in this concept.
On the other hand, waiting for “the long run” to organically take care of human rights is a risky bet, and one that consigns some people to living as unequal citizens for quite some time. I think it’s probably a good idea for the court to live in the now while acknowledging another founding principle — the one that animated the revolution that made this country:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.
Meanwhile, it’s perfectly clear the Scalia is signaling his opinion in a pending case that has not been announced. At what point is this guy going to get sanctioned for his behavior?
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