The NY Times implicitly advocates overthrowing the Constitution

The NY Times has launched a brutal attack on Justice Scalia as a possible Chief Justice. Its opinion itself deserves a brutal attack, because of the presumptions that underlying it. It begins

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.

This opening certainly implies that Scalia is lusting after a state in which juveniles are routinely dragged to the gas chambers. In fact, Scalia was simply asserting that the Supreme Court opinion overstepped itself, which is an entirely different concept, especially when coming from a Supreme Court justice. What I like, though, is the notion that the Constitution, in Scalia's hands, would be frozen in time, with its implication that we'd revert to medieval concepts of justice, complete with thumb screws and racks.

Justice Scalia dissented bitterly in this month's juvenile death penalty case. Reasonable minds may ask, as he did, whether the majority opinion relied too heavily on the norms of international law in deciding what punishment does not meet modern standards of decency. But Justice Scalia disagreed not merely with the majority's conclusion that offenders cannot be executed for crimes committed when they were under the age of 18, but with the very fact that the court was even considering the question. "By what conceivable warrant can nine lawyers presume to be the authoritative conscience of the nation?" he asked.

The fact is, Scalia is right. In a Democracy, the citizens, acting through the legislators, are the voice of the nation. Nine men and women who have no checks and balances imposed upon them, and who live in the rarified world of Washington, D.C., are not the nation's voice or conscience. Scalia is therefore correct that these lawyers are meant under Art. III of the U.S. Constitution only to be the interpreters of law as it is, not the voice of the nation's conscience. Their voice and their consciences, at best, reflect only their narrow sensibilities and political millieu.

In his speech last week at the Woodrow Wilson Center, he continued on the same theme. He attacked the idea of a "living Constitution," one that evolves with modern sensibilities, which the Supreme Court has long recognized in its jurisprudence, and of "evolving notions of decency," a standard the court uses to interpret the Eighth Amendment prohibition on "cruel and unusual punishments" in cases like those involving the death penalty. In drafting the Constitution, and particularly the Bill of Rights, the Founders chose to use broad phrases that necessarily require interpretation. Since its landmark 1803 ruling in Marbury v. Madison, the court has held that it is the final word on the Constitution's meaning. In the recent juvenile death penalty case, the court was doing its job of determining what one such phrase, "cruel and unusual punishment," means today.

There is no doubt that our modern sensibilities (whether modern be determined as of 1850, 1950, or 2005) inform the decisions we make. Nonetheless, the Supreme Court has always kept up the pretence that it is applying the law, even though that law may be filitered through evolving belief systems. Here, though, the NY Times is advocating that the Constitution simply be slotted into modern value systems, without even the pretence of ordinary legal, Constitutional analysis, something that becomes even more clear in the following paragraphs.

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.

There you have it: because policies we at the NY Times like come from judges, not from the Constitution, the Constitution must yield to the judges' interpretation. That's a terrifying slippery slope, since the next step is to say, the heck with the Constitution, let's just rely entirely on judges.

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.

Notice the terminology here: Justice Scalia, who advocates elevating the Constitution above individual preferences, is "radical," implying that those who would jettison the Constitution entirely in favor of a few judge's viewpoints are moderate. The NY Times is saying that it would deprive Americans of their paramount judge-made "rights" if we were actually to revert to the rights the Founding Fathers envisioned. If you want radical, you'll find it in this NY Times opinion, which essentially advocates the overthrow of our Constitution in favor of the law of judges. I, personally, find that a scary thought.