Monday, April 28, 2008


Link to Antonin (Nino) Scalia’s 60 Minutes interview. (originalism)
----------Please keep in mind as you read and think through the article, that Originalism refers to the method of changing the Constitution democratically through elected officials not through unelected judges. It is not about the right or wrong of the social issues of our time, only the means by which those social issues attain the status of law. If change becomes necessary then change the constitution through democratic methods.
---------- Judge Antonin Scalia’s Originalism presents a refreshing look at Constitutional questions concerning the hot button social issues of today. From abortions to capital punishment to torture, Judge Antonin Scalia‘s concept “Originalism” seems to separate the wheat from the chaff. I think it clearly defines what the responsibilities of the Supreme Court should or should not be. I infer from the interview that Judge Scalia would look upon the “judicial fiat” method of changing or making law as taking the easy way out. Or perhaps the only way out after trying to change the law democratically has failed. Either way I believe he would call that change not constitutional. I totally agree with that.
--------- I revel in Scalia’s Originalism as refreshing because it acts as a counter-balance an alternative to the old accepted way of thinking of the Constitution as a “living document” that can be changed by “judicial fiat” to fit the changing values and ethos of the day. The nut of Originalism is that it doesn’t take umbrage with the notion of changing the Constitution: just in the method of that change. Originalism demands that change occur democratically, and not by any other means. In other words through legislation, not through “Judicial fiat”. If that method is slower and harder Originalism will say that is what the Framers had in mind.
--------- Below is a snippet from the interview about the hot button issue of abortion and the idea of changing the Constitution in relation to his concept of Originalism.
{Back at the Oxford Union, Scalia told the students, "You think there ought to be a right to abortion? No problem. The Constitution says nothing about it. Create it the way most rights are created in a democratic society. Pass a law. And that law, unlike a Constitutional right to abortion created by a court can compromise. It can…I was going to say it can split the baby! I should not use… A Constitution is not meant to facilitate change. It is meant to impede change, to make it difficult to change."}
Here is a man who believes and whose job it is to follow the dictates of the Constitution. Not to change it to fit his beliefs. While he seems opposed to abortion, he is also opposed to allowing the court to decide in favor of outlawing abortions. His Originalism holds sacrosanct what the Framers had in mind when they wrote the Constitution. In regards to abortion they didn’t have the concept in mind when they wrote the Constitution.
“…I think when the Constitution says that persons are entitled to equal protection of the laws, I think it clearly means walking-around persons. You don't count pregnant women twice."
The idea that fetus’s were “walking around people” would have been alien to them . I believe he is claiming that if you want to change or update the Constitution, then you have that right. But as the Constitution now stands, it does not cover abortion either way. All that is then needed is to pass a law. I assume that when and if that law was brought to the Court he would rule that the Court had no jurisdiction over the law, and the law would stand.
Here is a man who places his belief in following the rule of law as embodied in the Constitution above his personnel social views. Ironic isn’t it that the Framers who had diametrically opposed ideas felt the same way used the same construct to write the Constitution. It is refreshing to see a person in this day and age not so corrupted by his social beliefs as to be willing to follow the rule of law even though he has the obvious power to overlook it.
Again, please read the article with the idea of Democratic change vs. Judicial change in mind and you may just start to think that the Judge may be on to something. Then go ahead and call him names. Lol. Judge Scalia won’t mind. Neither will I.
Regards, Live Dangerously Be A Conservative

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