Willisms
Navigation

Buy WILLisms

XML Feed


Featured Entries

The Babe Theory Of Political Movements.
Mar. 21, 2005 11:50 AM

Iran's Sham Election In Houston.
June 20, 2005 5:36 AM

Yes, Kanye, Bush Does Care.
Oct. 31, 2005 12:41 AM

Health Care vs. Wealth Care.
Nov. 23, 2005 3:28 PM

Americans Voting With Their Feet.
Nov. 30, 2005 1:33 PM

Idea Majorities Matter.
May 12, 2006 6:15 PM

Twilight Zone Economics.
Oct. 17, 2006 12:30 AM

The "Shrinking" Middle Class.
Dec. 13, 2006 1:01 PM

From Ashes, GOP Opportunities.
Dec. 18, 2006 6:37 PM

Battle Between Entitlements & Pork.
Dec. 21, 2006 12:31 PM

Let Economic Freedom Reign.
Dec. 22, 2006 10:22 PM

Biggest Health Care Moment In Decades.
July 25, 2007 4:32 PM

Unions Antithetical to Liberty.
May 28, 2008 11:12 PM

Right To Work States Rock.
June 9, 2008 12:25 PM



Donate





Links

Blogroll Me!







Search



Archives

July 2008
June 2008
May 2008
April 2008
March 2008
February 2008
January 2008
December 2007
November 2007
October 2007
September 2007
August 2007
July 2007
June 2007
May 2007
April 2007
March 2007
February 2007
January 2007
December 2006
November 2006
October 2006
September 2006
August 2006
July 2006
June 2006
May 2006
April 2006
March 2006
February 2006
January 2006
December 2005
November 2005
October 2005
September 2005
August 2005
July 2005
June 2005
May 2005
April 2005
March 2005
February 2005
January 2005
December 2004




Social Security Reform Thursday.
March 13, 2008

Caption Contest: Enter Today!
Due: July 29, 2008

The Carnival Of Classiness.
Mar. 14, 2006

Quotational Therapy: Obama.
Apr. 4, 2008

Mainstream Melee: Wolfowitz.
May 19, 2007

Pundit Roundtable: Leaks.
July 9, 2006

A WILLisms.com(ic), by Ken McCracken
July 14, 2006




Credits

Powered by Movable Type 3.17
Site Design by Sekimori




WILLisms.com June 2008 Book of the Month (certified classy):











The WILLisms.com Gift Shop: Support This Site

giftshopbanner.gif











This Week's Carnival of Revolutions: carnivalbutton.gif



Carnival Home Base: homebase.gif

























Willisms

« Alaska: Open For Business. Finally. | WILLisms.com | Reform Thursday: Chart Seven. »

Constitutional Interpretation and Judicial Nominations

Justice Antonin Scalia gave a speech two days ago at the Woodrow Wilson Center for Scholars on the topic of Constitutional Interpretation (read the transcript here, via Instapundit). This is a topic near and dear to my heart, as I am currently writing an undergraduate honors thesis that deals directly with Constitutional interpretation.

Scalia is regularly lambasted by those who don’t agree with his political ideology for being too conservative, but I have long been a fan of his written opinions; they are among the most logically consistent and easy to read examples of legal scholarship to be found. And yes, his opinions are works of legal scholarship, you may disagree with what he says but it’s hard to disagree with the facts and the cases he cites when making an argument.

Scalia ended his speech by talking briefly about how the current judicial nomination process is threatening to damage the Constitution. This topic was brought into sharp focus by Senate Minority Leader (and shaping up to be its chief obstructionist) Harry Reid threatened that Senate Democrats will stall any and all Senate business they can if the Republican majority modifies the Senate rules to disallow filibusters on Judicial nominations. The thing to remember is that this cuts both ways, it is seen as a “conservative” issue now, but a decade ago it was a “liberal” issue when it was Clinton's nominees that were meeting resitance from a newly elected Republican Congress. However, I can practically guarantee you that Justice Scalia’s remarks would have been the same in 1995 as they were in 2005:

You heard in the introduction that I was confirmed, close to nineteen years ago now, by a vote of ninety-eight to nothing. The two missing were Barry Goldwater and Jake Garnes, so make it a hundred. I was known at that time to be, in my political and social views, fairly conservative. But still, I was known to be a good lawyer, an honest man, somebody who could read a text and give it its fair meaning, had judicial impartiality and so forth. And so I was unanimously confirmed.

Today, barely twenty years later, it is difficult to get someone confirmed to the Court of Appeals. What has happened? The American people have figured out what is going on. If we are selecting lawyers, if we are selecting people to read a text and give it the fair meaning it had when it was adopted, yes, the most important thing to do is to get a good lawyer. If on the other hand, we’re picking people to draw out of their own conscience and experience, a new constitution, with all sorts of new values to govern our society, then we should not look principally for good lawyers. We should look principally for people who agree with us, the majority, as to whether there ought to be this right, that right, and the other right. We want to pick people that would write the new constitution that we would want…

I think the very terminology suggests where we have arrived: at the point of selecting people to write a constitution, rather than people to give us the fair meaning of one that has been democratically adopted. And when that happens, when the Senate interrogates nominees to the Supreme Court, or to the lower courts, you know, “Judge so and so, do you think there is a right to this in the Constitution? You don’t?! Well my constituents’ think there ought to be, and I’m not going to appoint to the court someone who is not going to find that.” When we are in that mode, you realize, we have rendered the Constitution useless, because the Constitution will mean what the majority wants it to mean. The senators are representing the majority. And they will be selecting justices who will devise a constitution that the majority wants.

And that of course, deprives the Constitution of its principle utility. The Bill of Rights is devised to protect you and me against, who do you think? The majority. My most important function on the Supreme Court is to tell the majority 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 majority is a recipe for destruction of what we have had for two-hundred years.”

Justice Scalia's point is important. As John Marshal noted 200 years ago "It is a Constitution we are expounding," not some small piece of legislation. It deserves better than partisan vitriol and rancor. The rest of his speech is just as good, but not as topical to the current political climate. If you have time, I’d suggest you give it a read.

Posted by · 16 March 2005 08:03 PM

Comments

"My most important function on the Supreme Court is to tell the majority to take a walk."

Heh. I woulda used "to go f#@% themselves", but that's just me...

Posted by: b-psycho at March 16, 2005 11:54 PM

I think Scalia would make a good Chief Justice.

Posted by: Will Franklin at March 17, 2005 01:32 PM

Scalia would be a great Chief Justice! Our country would be lucky to have Scalia !

That b-psycho comment is just what the name implies!

Posted by: stephanie at March 17, 2005 05:13 PM