Don't Know Much About Originalism

But Edward Whelan does:

Stated somewhat differently, if Justice Scalia were in fact to read into the Constitution his own (presumed) substantive views on abortion, he would conclude that permissive abortion laws were themselves unconstitutional. Likewise, he would conclude that legislators could not abolish capital punishment and could not create same-sex marriage. His clear rejection of these positions demonstrates that on these issues Justice Scalia's originalism is in fact politically neutral. In other words, originalism will lead to "conservative results" on these issues only if, and to the extent that, elected legislators enact conservative positions into law. Conversely, originalism will lead to liberal results when elected legislators enact liberal laws. And, of course, the free play that originalism gives to the political process on these issues will allow the electorate the flexibility to change its collective position over time.

Talbot's misunderstanding also badly infects her discussion of Justice Scalia's dissent from the Court's 2003 ruling in Lawrence v. Texas, which invented a constitutional right to engage in homosexual sodomy. Talbot charges that his dissent's invocation of the moral opposition of many Americans to homosexual conduct "leave[s] the unavoidable impression that he is speaking not only for originalism but also for his own selective notion of the vox populi." But Justice Scalia was not selecting who should speak for the people of Texas. The vox populi of Texas had spoken through the statute that Texas enacted, and Justice Scalia was merely explaining that the Court was wrongly taking sides in the ongoing culture war by quashing that statute.

Over the last several decades the courts have engaged in a massive judicial power grab committed in the name of the "living Constitution" — the vapid euphemism that liberal activists have used to pretend that the Constitution has somehow "grown" to entrench forever their own policy preferences. What Justice Scalia places squarely at issue is whether this power grab has any serious claim to be regarded as legitimate by the American citizens whose ability to govern themselves through their legislators has thereby been radically diminished. This is the question that should be front and center in the ongoing debate over the judiciary.

This is why the complete fools like Ginsberg and Breyer really bug me. For all the study of law over decades of legal practice, do you think they might have bothered to read the bloody Federalist Papers and understand what the proper role of the judiciary is in our well-balanced system of government?

Where in plain English in the U.S. Constitution does it say the Supreme Court makes laws, as they did in Roe v. Wade and countless decisions since?

Where does it say that international law is the law of this land?

If the Constitution's a living document, why can't the Republican Congress rewrite it to throw these idiots off the bench?