Those Pesky Legislatures

An unintentionally hilarious editorial in today's New York Times gives yet another window into the bizarre world of left-wing thought.

Since Chief Justice William Rehnquist's cancer became public knowledge, the media has been in a tizzy over who would succeed him should he resign, or worse, die. Tops on most lists in Justice Antonin Scalia, a known favorite of President Bush's. I count myself as a backer of Scalia's and find his opinions in general the most persuasive on the court. (The highlight of my law school career was an argument I coaxed him into during an in class appearance on whether the Federalist Papers are nothing more historical "legislative history"...Scalia being a fan of using the former but completely against citing the latter.) He, like the others, will wade into left field on occasion. But unlike most liberal justices who just seem to make stuff up out of thin air (read any of Justice Brennan's opinions for an example), Scalia will at least heavily cite his rationale, so you know he has at least made the effort to be consistent with law and precedent.

One of Scalia's best reasoned opinions yet, IMHO, was his dissent in the recently decided Roper v. Simmons case. See my thoughts here.

Today's New York Times contained an editorial keeping up the drumbeat accusing Scalia of being a dangerous fanatic who wants to take everyone's rights away. Rights, of course, come not from the will of the people, but the robed justices on the court. Think I'm kidding? Well that is exactly the point of this editorial. From the get-go, the writer engages in hyperbole:

Some court-watchers say Justice Antonin Scalia is on a "charm offensive" to become the next chief justice. Then he must have been taking the day off when he gave a speech last week and lashed out at the Supreme Court's recent ruling striking down the death penalty for juveniles, and at the idea of a "living Constitution." There is nothing charming about his view that judges have no business considering the constitutionality of aspects of the death penalty, or that the Constitution should be frozen in time.

Justice Scalia has never said anything about judges "having no business considering the constitutionality of aspects of the death penalty." Scalia was arguing that the court remain consistent, because changing the meaning of laws repeatedly devalues their coercive effect and removes the legislature from its rightful place of making the laws demanded by the people.

Says Scalia:

The Court has appropriated from the American people the role of social arbiter. Thus, it strikes down longstanding policies and practices adopted through the democratic process on the grounds that five or more Justices personally don't approve.

Contrast this thought, which shouldn't be shocking for anyone who thinks we are living in a representative democracy, with the premise of the New York Times editorial:

The implications of Justice Scalia's remarks are sweeping. Many of the most central principles of American constitutional law - from the right to a court-appointed lawyer to the right to buy contraception - have emerged from the court's evolving sense of the meaning of constitutional clauses. Justice Scalia seems to be suggesting that many, or perhaps all, of these rights should exist only at the whim of legislatures.

Let that bolded sentence sink in for a second. This editorialist is arguing that legislatures should not be determining the laws. Instead, the nine old law professors in black robes should, at their whim, be deciding what our rights are. This type of thought boggles my mind. The American experiment was designed by the Founders to take power from an unaccountable elite and invest it in the People. The People are our voters, our legislators, and our President. The Supreme Court, on the other hand, is accountable to no one, save the extremely rare impeachment.

The assumption that a bunch of academics who are completely out of touch with the average American know what is best for you or I is one I am unwilling to make. The notion that the Supreme Court is an intellectual body devoid of partisanship is also naive. And the construct that gives these Justices a life-time term inside the walls of the Supreme Court building on Capitol Hill ensures that their isolation and insulation from the true American society strengthens their detachment from what the People might want.

The editorial concludes with more breathless hype:

Justice Scalia may believe that by repeating his radical views enough times, the nation will grow accustomed to them. But his approach would mean throwing out much of the nation's existing constitutional law, and depriving Americans of basic rights. Justice Scalia's campaign to be the next chief justice, if it is that, is a timely reminder of why he would be a disastrous choice for the job.

Since when is it radical to believe that, in a democracy, the power comes from the people through the instrument of representative government and that a law should always have a single meaning and not be open for repeated interpretation? Is it less "radical" that justices are given sway to legislate from the bench, reach conclusions based on their preconceived biases, and take the debate out of the people's hands?

If a man who interprets the law based on the written text could "throw out" existing constitutional law, methinks it would be law that should be discarded. That Scalia is on a mission to deprive people of their "basic rights" is laughable on its face. Basic rights are what the Founders and the legislatures are tasked with granting us, not the courts. If giving the law back to the people through the instrument of a conservative Chief Justice like Scalia is a "disaster" and we are to succumb once again to rule by the elite as advocated by this NYT piece, then 1776 was all for naught.