“My Constitution is a very flexible Constitution. You think the death penalty is a good idea — persuade your fellow citizens and adopt it. You think it’s a bad idea — persuade them the other way and eliminate it. You want a right to abortion — create it the way most rights are created in a democratic society, persuade your fellow citizens it’s a good idea and enact it. You want the opposite — persuade them the other way. That’s flexibility. But to read either result into the Constitution is not to produce flexibility, it is to produce what a constitution is designed to produce — rigidity. Abortion, for example, is offstage, it is off the democratic stage, it is no use debating it, it is unconstitutional. I mean prohibiting it is unconstitutional; I mean it’s no use debating it anymore — now and forever, coast to coast, I guess until we amend the Constitution, which is a difficult thing. So, for whatever reason you might like the Living Constitution, don’t like it because it provides flexibility”. –Supreme Court Justice Antonin Scalia, delivered the following remarks at the Woodrow Wilson International Center for Scholars in Washington, D.C., on March 14, 2005
Here’s a neat article from Slate puncturing originalism.
http://www.slate.com/id/2126680/
Some highlights:
“Justices Antonin Scalia and Clarence Thomas, while proclaiming themselves faithful followers of original intent, do not always practice what they preach. For example, these two justices have consistently voted against affirmative action but have never explained how their votes can be squared with historical evidence that the Reconstruction Congress itself engaged in affirmative action.”
Also some interesting points about how the leading lights of originalism were liberals, including Hugo Black.
Also, here:
http://www.slate.com/id/2125226/
“We are all living constitutionalists now. But only some of us are willing to admit it.”
I am not a lawyer, so I am not going to argue against each and every case. My only point here is to argue against the very meaning each justice uses to describe their judicial philosophy.
Assuming for the moment that each justice is sincere in stating their judicial philosophy, I find the originalism judicial philosophy, the one that Scalia, Thomas, and other conservative justices claim to follow, much more appealing than the living constitution judicial philosophy, the one that Ginsberg, Souter, and many liberal justices claim to follow. I find it more appealing specifically because it leaves moral issues up to the voters, not a few judges to decide for the rest of us.
We can go back and forth on whether each of these judges actually follows their judicial philosophy or not, and that is a debate for another day, my point here is with the stated judicial philosophies themselves.