Our next chief justice?

As U.S. Supreme Court Chief Justice William H. Rehnquist’s health deteriorates, many think President Bush will choose Antonin Scalia to replace him. “Speaking at a closed meeting attended by Wilson Center scholars, staff, and the media, Justice Antonin Scalia explained his approach to constitutional jurisprudence.” The Woodrow Wilson International Center for Scholars has published its account of Scalia’s remarks.

Scalia believes himself able to interpret the Constitution as its framers intended. Disregarding the logic behind Roe v. Wade, “he said, abortion was criminalized by most of the states 200 years ago but Supreme Court decisions of the last three decades have made state prohibitions on abortion unconstitutional. Those decisions, he argued, are wrong. The electorate can bring about democratic change by putting such issues on the legislative agenda, ‘but it is not the function of the Constitution to do that.'”

Michael Dorf, writing in Findlaw, describes the argument that the constitution does not mention abortion as “bad argument number one.”

    When somebody says that abortion–or any other right–is unprotected because [it is] not enumerated in the Constitution’s text, he flatly contradicts the Ninth Amendment. Conversely, the Roe and Casey Courts were both right to rely on this Amendment in their decisions.

But Scalia’s “originalism” defies and abandons logic. In his doctrine, we cannot derive rights, even when not to do so violates existing rights. Further, much like Mormons converting the dead, it presumes an ability to divine the framers’ original intent, and a right to speak for them.

    “The Court has essentially liberated itself from the text of the Constitution and even from the traditions of the American people,” Justice Scalia proclaimed.

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