Saturday, July 05, 2008

Justice Scalia on 60 Minutes

60 Minutes did a very interesting profile of controversial Supreme Court Justice Antonin Scalia. In part 1 (which you can watch below), Scalia defends his judicial philosophy of originalism. (You can watch the other parts at YouTube).

For my own part, I must heartily endorse Scalia's reasoning. If you allow for courts to redefine the meaning of the Constitution, then the document ceases to be a constitution. It becomes merely a platform for the judiciary to make policy for the nation.

Scalia has been a stalwart champion for keeping the judicial branch of government in its place - that of interpreting the law (within set boundaries of interpretation) - and deferring to the legislative branch of government the RIGHTFUL perogative of making and changing laws.


bpabbott said...

A few comments:

(1) The constitution does not enumerate rights. It enumerates the powers of government. As such, the claim that no one has a right to abortion is a non sequitur. The Bill of Rights explicitly forbids government from infringing upon specific liberties, but is also clear that the government is *not* free to infringe upon any rights not specified.

(2) Regarding "original intent", such a strategy for interpretation requires one to ask whose values should serve as a foundation for interpretation. The values of the American WASPs of 200 yrs ago, or the values of the more diverse voting society of today?

(3) Regarding interpretation, the constitution is clear that the court is responsible to determine how they are to interpret the law. Each justice may embrace his own opinion in this. There are many approaches to Judicial Interpretation that have been endorsed and used by various judges. While there are many differences of opinion in how the job should be done, there is no legally right or wrong approach (barring impeachment) for a Justice to carry out his duty.

Now for my opinion on Scalia:

Scalia does not seek to deny the right to abortion because of the wording of the constitution. He does so to favor his own personal values ... and barring impeachment, he is free to do so.

Not only is it Scalia's privilege to interpret the law as he sees fit, he is also free to disparage the approach applied by other Justices. However, I think it unethical to publicly claim his approach is superior to another's. It is improper to politicize an issue in the hope of gaining an advantage when his words are insufficient to compel the reasoned minds of his fellow Justices.

Regarding what "rights" are to be properly safe guarded, I am not certain how we might go about determining that, but I do have an opinion.

Human reason, in the context of the society of those governed, should be the foundation. That is not to say that rights should be determined democratically. Simply because if left to the majority the minority will ultimately suffer tyranny. The Justices should carry out their responsibility with as much isolation from politics as possible. Regarding Judicial interpretation, I'd prefer original intent within the context of modern values.

bpabbott said...

I came across an interesting perspective on Judicial Interpretation on PrawfsBlawg, Umpires, Judges, and Interpretation". Perhaps it is of interest to others.

Brian Tubbs said...

Wow, Ben, a very thorough post. Hard to respond to all of that right now. :-)

I disagree with your assessment of Scalia's motives. I think he sincerely believes it's the judge's role to interpret based on the LANGUAGE and the original understanding of said language. I think that's a sincere belief on his part (whether we agree with it or not). I don't think he's being intentionally devious.