Michael Gaynor
God bless Justice Scalia and other originalists
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By Michael Gaynor
November 30, 2010

Justices are not supposed to be Humpty Dumptys, insisting as Humpty Dumpty did to Alice, in a scornful tone: "When I use a word, it means just what I choose it to mean — neither more nor less."

Justice Antonin Scalia is an originalist, as justices and judges are supposed to be, but he has been telling it like it really is: "Under the guise of interpreting the Constitution and under the banner of a living Constitution, judges, especially those on the Supreme Court, now wield an enormous amount of political power, because they don't just apply the rules that have been written, they create new rules."

Steven Ertelt, in "Justice Scalia: Founders Never Imagined Abortion 'Rights'" (www.lifenews.com/2010/11/23/nat-6875/):

"In a speech at the University of Richmond in Virginia on [November 19, 2010], Supreme Court Justice Antonin Scalia confirmed again his view that the Constitution contains no so-called abortion rights.

"He told the audience during his speech, that is only now drawing attention, that the founders of the nation never envisioned a right to an abortion when drafting the Constitution that is supposed to guide the federal courts.

"Scalia criticized, according to an AP report, those who misinterpret the 14th Amendment's due process clause to include abortion.

"'But some of the liberties the Supreme Court has found to be protected by that word — liberty — nobody thought constituted a liberty when the 14th Amendment was adopted,' Scalia said. 'Abortion? It was criminal in all the states.'"

EXACTLY!

Liberal judicial activists circumvent the Constitution's prescribed amendment procedure under the guise of judicial interpretation.

These activists describe the Constitution as a "living document," thereby obfuscating the reality that they are usurping power never given to them.

In his Richmond speech Justice Scalia pulled back the curtain on the judicial activism power grab.

Ertelt:

"Scalia repeated his view that the Constitution should be taken literally, as written, rather than interpreting it to include rights not intended to be protected under law.

"'The Constitution says what it says and it doesn't say anything more. For flexibility, all you need is a legislature and a ballot box,' he added, in terms of how abortion advocates should attempt to change the constitution if they want to have legal abortions.

"By allowing the Supreme Court to create rights not enumerated by the Constitution — 'you're allowing five out of nine hotshot lawyers to run the country.'"

EXACTLY!

In sharp contrast to the arrogant, elitist activists, Scalia humbly acknowledged that the words of the Constitution should be interpreted as they were meant at the time they were written and gave this Looney Tunes example to show how the meaning of words has changed over time: In the Old Testament, the word "nimrod" was used to describe a great hunter. But when Bugs Bunny used the word to describe Elmer Fudd, the meaning changed to mean an idiot.

Justices are not supposed to be Humpty Dumptys, insisting as Humpty Dumpty did to Alice, in a scornful tone: "When I use a word, it means just what I choose it to mean — neither more nor less."

The Founding Fathers did not conceive of the Supreme Court of the United States as a super legislature, and the Constitution did not make it one.

Chief Justice John Marshall explained the duty of the Supreme Court.

In Gibbons v. Ogden, (1824), Marshall endorsed natural construction of the Constitution, since "the enlightened patriots who framed our Constitution, and the people who adopted it, must be understood to have employed words in their natural sense, and to have intended what they said."

In Ogden v. Saunders (1827), Marshall noted that "the intention of the instrument must prevail" and "be collected from its words," "its words are to be understood in that sense in which they are generally used by those for whom the instrument was intended," and "its provisions are neither to be restricted into insignificance, nor extended to objects not comprehended in them nor contemplated by its framers...."Justices and judges are to be servants of the law, not manipulators of the law.

Scalia in his address entitled "Do Words Matter?": "Unless the words have meaning and unless judges give them their fair meaning, democracy doesn't work."

EXACTLY!

Scalia is right that the 14th Amendment's due process clause has been distorted from a guarantee of process to a guarantee of liberty" and "some of the liberties the Supreme Court has found to be protected by that word — liberty — nobody thought constituted a liberty when the 14th Amendment was adopted."

Scalia: "Homosexual sodomy? It was criminal in all the states. Abortion? It was criminal in all the states."

The Supreme Court created a constitutional right to abortion.

There is no constitutional right to polygamy or "gay marriage."

When the Fourteenth Amendment was adopted, there was absolutely no intention to make abortion, polygamy or "gay marriage" constitutional rights.

As President Reagan said, "facts are pesky things."

© Michael Gaynor

 

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Michael Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member... (more)

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