Monday, March 21, 2005

Whose Whims Rule? (by Max)

From a NYT editorial today:

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.

What Justice Scalia is suggesting, actually, is that these "rights" are not outlined in the constitution at all and that the people should have a say on the issues. "The whim of legislatures" is a nice phrase but what they mean actually is "at the discretion of the people". Legislatures being elected, accountable bodies, are far more likely to consider the views of the people they represent than are unelected, unaccountable judges.

Scalia's point is not that the people are always right, but that they should have the right to self governance. When 5 judges can outlaw capital punishment for minors on the basis of international law and what they see as an emerging consensus, that is a whim. When their opinion overturns an opinion of virtually the exact same court and explicitly rejects their prior reasoning, that is a whim. The NYT would have you believe that the will of the people is little other than a whim, while the personal opinion of 5 unaccountable judges is a solid unalterable basis of reasoning.... until court cases start going against their editorial line, of course.

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