Return to justice as founders saw it
Here’s an excellent piece by Charles Krauthammer on the Constitution and how it has been applied in light of last week’s medical marijuana ruling, and what the real debate should be when deciding who should be a federal judge.
The real question is never what judges decide, but how they decide it. The Scalia-Thomas argument was not about concern for cancer patients, the utility of medical marijuana or the latitude individuals should have regarding what they ingest.
It was about what the commerce clause permits and, even more abstractly, who decides what the commerce clause permits. To simplify only slightly, Scalia says: Supreme Court precedent. Thomas says: the founders, as best we can interpret their original intent.
…there is a third notion, championed most explicitly by Justice Stephen Breyer, that the Constitution is a living document and the role of the court is to interpret and reinterpret it continually in the light of new ideas and new norms.
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Excellent point. On a messageboard that shall remain nameless I used to argue with liberals and one of the hardest ideas to get across is that you can be in favor of making something legal but be against the court ‘reinterpretting’ law to make something legal. Most cannot see that opposition to Roe vs. Wade was a horrible decision which should be overturned even if you believe that abortion should be legal.
I would hate to see it but I imagine that there could be Conservative jurists who are not originalists. They would interpret the constitution according to their point of view. Let’s hope not. There are a few liberal ideas I support. (Holding breath and speaking in a strand voice) And I wouldn’t want to live under a (exhaling) conservative tyranny than I want to live in a liberal tyranny.