CNN reported yesterday that Justice Antonin Scalia is "saddened to see the Supreme Court deciding moral issues not addressed in the Constitution, such as abortion, gay rights and the death penalty. He said such questions should be settled by Congress or state legislatures beholden to the people."
"I am questioning the propriety -- indeed, the sanity -- of having a value-laden decision such as this made for the entire society ... by unelected judges," he said.
"Now the Senate is looking for moderate judges, mainstream judges. What in the world is a moderate interpretation of a constitutional text? Halfway between what it says and what we'd like it to say?" he said, to laughter and applause.
Ha ha, oooh, that was hilarious. Allow me to point out some irony:
Article II, Section 2 of the U.S. Constitution expressly gives the President -- with the advice and consent of the Senate -- the power to appoint Supreme Court Justices. Article III Section 2 says "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution."
Scalia has said he reads the text of the Constitution in a literal manner, a method in which the "plain and ordinary meaning" of the text guides interpretation. "Words mean what they mean." If that is true, it hardly seems appropriate for him to question the "sanity" of the Framers when they decided that judges should be appointed, and therefore expressly unaccountable to the electorate, and also the Court's authority to rule on "all cases" in which there is a Constitutional issue.
Scalia apparently does not comprehend -- or is intentionally obscuring -- the distinction between what is "legal" and what is "moral." Exceeding the speed limit is not amoral, but it's illegal for a plethora of practical reasons. Deciding that slaves only counted as three-fifths of a person in determining a state's population for purposes of Congressional representation was immoral, but was the law.
Codes of "morality" vary from person to person and culture to culture. In present day America, many people feel it is immoral for an unmarried couple to live together, but it's legal. Many people feel it's immoral to have children out of wedlock, but it's legal. Britney Spears' first marriage lasted 55 hours: legal.
Scalia believes the Court has no jurisdiction over "moral issues not addressed in the Constitution." In a way, he's right: they have no jurisdiction over morality. But when one group's definition of "morality" butts up against the Constitutional pillars of due process and equal protection, then the Court has the responsibility to intervene to determine the legality.
If anyone feels conflicted between what the Constitution says and what they'd like it to say, it's Antonin Scalia.
Sidenote: I think CNN has been reading my blog. The headline for this article was "Scala blasts 'judge moralists'." You have to go back to July 27 to find a headline that has the word "slams" in it. Hurray!