I'm a bit afraid...
... I was watching C-SPAN today, and there was an ACLU membership conference that featured a discussion between the ACLU President, Nadine Strossen, and - of all people - Justice Antonin Scalia.
I had to say, in many cases, that I agreed with Justice Scalia on the concepts of opposition to an aristocratic Supreme Court interpreting a clause in the Constitution as part of an evolving document, and talking about what's in the documents, rather than what should be in the documents. Having said that, I also agreed with the idea that without evolving meaning, the Equal Protection Clause would never have been able to interpreted to allow racial desegregation of schools or interracial marriage.
The fact that I agreed with Scalia even a bit, though, made me reconsider the whole "going-into-law" thing. Not reconsider in the sense that I now don't want to, but reconsidering the role of lawyers, and judges, and the judicial system in general. Is the system there to enforce only what the law says, and what those words meant when they were written, or are they to take the underlying principle and apply it to modern-day situations to protect the rights judges feel are protected by the underlying principles? And either way, what if the OTHER interpretation led to a case in the past, and now you have to deal with that precedent? Does the philosophy or the precedent take precedence?
"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."
It's a really interesting and perplexing question. I think I actually come closer to Scalia's position as an idea. However, when you look at the applications of Scalia's ideas, you get some problems. (As you do with Strossen's, but Scalia's seem worse in terms of potential "bad consequences.") Hmm.
I had to say, in many cases, that I agreed with Justice Scalia on the concepts of opposition to an aristocratic Supreme Court interpreting a clause in the Constitution as part of an evolving document, and talking about what's in the documents, rather than what should be in the documents. Having said that, I also agreed with the idea that without evolving meaning, the Equal Protection Clause would never have been able to interpreted to allow racial desegregation of schools or interracial marriage.
The fact that I agreed with Scalia even a bit, though, made me reconsider the whole "going-into-law" thing. Not reconsider in the sense that I now don't want to, but reconsidering the role of lawyers, and judges, and the judicial system in general. Is the system there to enforce only what the law says, and what those words meant when they were written, or are they to take the underlying principle and apply it to modern-day situations to protect the rights judges feel are protected by the underlying principles? And either way, what if the OTHER interpretation led to a case in the past, and now you have to deal with that precedent? Does the philosophy or the precedent take precedence?
"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."
It's a really interesting and perplexing question. I think I actually come closer to Scalia's position as an idea. However, when you look at the applications of Scalia's ideas, you get some problems. (As you do with Strossen's, but Scalia's seem worse in terms of potential "bad consequences.") Hmm.