Sunday, May 31, 2009

The Supreme Court


Idealogues should not be on the Supreme Court. That's what 'activist' judges are, in my opinion. Their only goal is to promote a point of view.
Are Scalia and Thomas idealogues? Does the consistency of their point of view mean they're idealogues?

Antonin Scalia believes we should interpret the Constitution using the same standards the authors of the Constituion used when writing it. Anything else is a twisting of the original intention to suit transitory cultural mores.
The counter argument is that the Constitution is a 'Living Document'. It's designed to change as we gain new scientific knowledge, or as the opinion of the people in our society change.

To the best of my understanding, Antonin Scalia would not have a federal law against slavery; he would have the state's individually make the law. The same holds true for abortion and gay marriage because neither of those specific questions are mentioned in the Constitution. When Justices of the Supreme Court interpret the Constitution as providing a freedom it doesn't specifically note, the Justices are overstepping the bounds of their authority as described in the Constitution's balance of powers.

In the 1940's and 1950's the Supreme Court acted in a way that Scalia would have liked, right? Individual states were supposed to make laws that outlawed discrimination based on race. Mostly they did. But some states didn't.
Yet, in the country as a whole, the idea that 'all men are created equal' had become the commonly held belief; it's the American ideal that everyone is equal under the law.

What are we to do when old beliefs won't die away fast enough? We can't allow little pockets of discrimination to exist within our borders. At some point, America has to stand for something bigger than federalism and the right of states to maintain their own brand of discrimination. There are moral high grounds that we aspire to. Its in our Constituion.

Given that, I can't see how Scalia can maintain his position about the original intention of the authors of the constitution. I suspect there's some additional nuance about his position that I don't understand. I'll research it some more.

In the meantime, the original question - does Scalia's point of view make him an idealogue?
Is it true that Conservatives tend to agree with the original intention philosophy and that Liberals tend to agree with the Living Document philosophy?
And, if so, how will we ever get along?

I don't know and I don't know and I don't know.

During the upcoming nomination hearings for Sotomayor (pronounced 'so-toe-my-yore') the bottom line of the questioning will be about this argument - original intention vs living document. We'll see what happens.

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