"If you have an evolving Constitution, somebody's going to have to decide, and I think that what has happened is that after 50 or 60 years of an evolving constitution, people have come to realize what is going on: that the people that they are selecting, not just for the Supreme Court, but even for the Court of Appeals, have enormous policy discretion, and I think that is what is going on. Judges have become political entities much more than they ever were."Thinking our Constitution is a "living" constitution brings politics much more directly into judicial nominations, and perhaps this means that the Judicial branch of government is not very independent any more.
Saturday, April 23, 2005
Evolving Constitution
From Laura Ingraham's sound bite of the week we have more Justice Scalia:
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2 comments:
Yet, the call for judges and Justices should be for ones who will judge the merits of the law, not ones who are "for" or against a political position or in favor of(or against) those seeking to "return" religion to our schools or policies.
We need Justices who will do the job designed for them by the Constitution as part of the checks and balances of our government.
We don't want "activist" Justices whether they are from the conservative or from the liberal point of view.
What is the definition of an "activist" Justice? Is an "activist" Justice more likely to be someone from the political left or the political right?
Justice Scalia emphasizes how a person approaches interpreting the Constitution. If a person seeks to understand the meaning of the words in the document in order to interpret what the Constitution means, how likely is it the person would be an activist Judge?
In 1942 the Wickard v. Filburn opinion changed the words in the Commerce Clause to say that Congress could regulate more than Commerce (which is exchange) because it said Congress could regulate production. Justice O'Connor in Hawaii Housing v. Midkiff (1984) changed the words of the 5th Amendment from "for public use" to "for public purpose." It seems to me that changing the written words of the Constitution, or adding unwritten words to the Constitution, illustrates the essence of an "activist" Justice.
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