Supreme Court Justice Scalia is at it again, attempting to justify his opposition to the recent decision to ban the death penalty in cases where the defendant was a minor at the time of the offense.
The CBS News article
reports that "... he said unelected justices too often choose to read new rights into the Constitution, at the expense of the democratic process."
I would wonder if Justice Scalia has ever noticed this:
"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
That is the text of the Ninth Amendment to the US Constitution and, as part of the Bill of Rights, it would seem that the justice should have seen it at some point in his education.
When you read the discussion of the adoption of the Constitution you learn that there were people who did not want to include a Bill of Rights because they were afraid that if a right were omitted that would be an excuse for the government to ignore it. This amendment was included to address that concern.
Scalia doesn't seem to understand the underlying purpose of the Constitution. At its root the Constitution is designed to limit the power of the government. The Revolution was a response to what people felt were abuses of power by the government of Britain. Rights are not subject to the passions of a simple majority of the electorate.
CBS highlights this basic misunderstanding of the balance of government power versus the rights of the individual by Scalia with its reminder that:
"During a speech last year in Hattiesburg, Mississippi, a deputy federal marshal demanded that an Associated Press reporter and another journalist erase recordings of the justice's remarks.
The justice later apologized. The government conceded that the U.S. Marshals Service violated federal law in the confrontation and said the reporters and their employers were each entitled to $1,000 in damages and attorneys' fees."
In 1791, a year that he seems to have a fondness for, Scalia would have been hounded out of office for this offense, if he escaped a challenge to a duel, which was still acceptable at the time. Of course in 1791 the only members of the current Court who would have been acceptable would have been Justices Rehnquist, Kennedy, Souter, and Stevens: Christian males of Northern European origin.