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Tuesday, April 06, 2004

Scalia for Deity

The last post I made generated a lot more scolding than it ever should have. A number of people came up to me (figuratively or no), and in hushed tones, asked if I was serious about my new found love of Antonin Scalia. When I replied in the affirmative, all sorts of craziness ensued: the most common variety being a wholesale dislike of the results of his rulings. Now, I personally would never question the motives of this man, becuase I'm almost certain that he is descended from Ra or Anubis or Marduk or Tiamat or some other ancient god. Other, more skeptical ("heathen") individuals tend to think that he is propegating originalism as a front for his own conservative agenda. Now, I personally could point to his numerous rulings which go against his legislative wants but follow his love of constitutional originalism? But I think that's beside the point.

A basic truth which seems to be lost in a lot of the analysis of supreme court cases is that the constitution is not a philosophical doctrine. It is a legislative statute, no different in principle from the tax code or any other of a number of like enacted laws. That it happens to be a superstatute doesn't change its fundimental role as a law, one which just happens to be compeltely un-tip-overable. Generally, this means that the consequences of happening to interpret it in a certain way are not actually tenable in judicial reasoning. Everyone who has spoken to me about the evils of Scalia begin and end their admonishment with "But, don't you think X should be legal?"

The short answer I give is: yes. In most cases, the types of things people ask are good policies. But the fact that the effect of Roe v. Wade or Johnson v. Santa Clara are desirable does not mean that they are actually within the proviso of the constitution, and the justices who happened to decide the aforementioned cases make little attempt to really justify them within a framework of what the constitution really means. They just sort of start at the fourteenth amendment, wave a magic wand, and presto - you have a right to privacy in your medical decisions which doesn't exist with other procedures, and which is certianly not generlally accepted by the country as a valid mode of thinking.

But maybe I'm just tired and intoxicated with Scalia.

cranked out at 1:41 AM | |

 
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