Beware Conservative Jurisprudence

United States v. Windsor (the gay marriage decision):
I’ve been reading an interesting book “The Second Amendment, a Biography”.

Besides relating how the conservative bench has turned the meaning of the right to bear arms on its ear, the book sets out an interesting analysis of “originalism”. This approach, whose main proponent is Justice Scalia, asserts that the Constitution should be interpreted by determining the meaning attached to it by the framers in their time or, at most, by how the population understood it in their time,

Not difficult to see how this approach hampers review of a statute that takes into account how society has evolved.

Yesterday’s decision also emphasized a new aspect, at least to me, in the Scalia approach. He was adamant that the intention of the framers was that the Court should not interpret laws unless it is adjudicating a substantial dispute in the nature of a lawsuit. The idea of the Court simply intervening where there is a difference in opinion on the meaning of a statute and its constitutional implications was anathema to the good Justice.
This (sort of) superintending power, in his view, would create a tyranny in the judicial branch of government- i.e. the Courts should not be allowed to create law outside ( “above”) an adversarial context.
Scalia tsk tsks that many foreign courts have assumed this role.
One can assume that he would include our own Supreme Court in the group of potential despots. Our Supreme Court, after all, does not hesitate to jump in and review constitutionality in most contexts.
The jury is out on whether the Scalia approach will ultimately succeed.
Given the penchant of our Government’s philosophers to mimic our neighbour’s most conservative elements. though, one wonders if support for such conservative principles are being discussed up here.
In a back room or faculty office somewhere are scholars looking longingly southward?


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