Justice Antonin Scalia on Sunday defended some of his Supreme Court opinions, arguing that nothing in the Constitution supports abortion rights and the use of race in school admissions.
Scalia, a leading conservative voice on the high court, sparred in a one-hour televised debate with American Civil Liberties Union president Nadine Strossen. He said unelected judges have no place deciding politically charged questions when the Constitution is silent on those issues.
Arguing that liberal judges in the past improperly established new political rights such as abortion, Scalia warned, “Someday, you’re going to get a very conservative Supreme Court and regret that approach.”
“On controversial issues on stuff like homosexual rights, abortion, we debate with each other and persuade each other and vote on it either through representatives or a constitutional amendment,” the Reagan appointee said.
“Whether it’s good or bad is not my job. My job is simply to say if those things you find desirable are contained in the Constitution,” he said.
So many people forget that one of the beautiful things about our federalist government is the power of the various states to decide stick social issues independently. Our founding fathers, in their infinite wisdom, used the Constitution to set out a framework for the federal government and to list a set of basic rights for the people that cannot be denied. Then, once they did those things, they left decisions about everything else “to the States respectively, or to the people.”
Which means that nasty social issues for which there are no good solutions that will satisfy all of the people are to be left to the individual states to solve to the satisfaction of the greatest number of people. Not only does this allow the people a greater amount of control over such policy (local politicians are a lot easier to influence than national politicians), but it also left America with the unique ability to be flexible in a way no other country on earth can be.
Consider gay marriage, for instance. Right now any given state can legalize homosexual marriage and let all the gays marry. That would be perfectly Constitutional, and people who wanted to live in a society where gay marriage is possible could move to that state. But it also follows that any given state can ban homosexual marriage, and people who want to live in a society that doesn’t allow homosexual marriage could move there. That also should be perfectly Constitutional given that the 10th amendment to that document delegates authority in such matter “to the States respectively.”
Unfortunately, a lot of people don’t get this. They don’t get that the Constitution clearly delegates the authority to decide these issues to the people, not to the courts. But that doesn’t matter to them. They want their way, and if that means convincing a judge to set policy through judicial fiat instead of through the legislative process so be it.
Which is sad, but as Scalia points out liberals may come to regret that strategy over the last several decades at the high Court becomes more and more conservative. Not that I’d support conservative judicial activism - I would hope that conservative judges would stick to interpreting the Constitution on a strict basis - but just that the liberals may not be happy if they do happen to get a taste of their own medicine.