Scalia: Judges Are Not 'Moral Philosophers'

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Tuesday, 01 Oct 2013 11:10 AM

By Sandy Fitzgerald

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The Constitution doesn't guarantee "rights" to many of the controversial issues the Supreme Court faces, conservative Justice Antonin Scalia said Monday, criticizing judges who act like "moral philosophers."

"Did any provision in the Constitution guarantee a right to abortion? No one thought so for almost two centuries after the founding, when abortion was a felony in all the states," Scalia said during a lecture at Georgetown University's law school Monday, reports The Hill.

"Did any provision in the Constitution guarantee a right to homosexual sodomy? Same answer. Did any provision in the Constitution guarantee a right to assisted suicide? Same answer. Did any provision in the Constitution prohibit the death penalty? Same answer."

It's not a judge's job to decide what is morally right or wrong when it comes to decisions like abortion or gay rights, Scalia insisted — and he says he doesn't agonize over such decisions.

The conservative judge said his philosophy of "originalism" is best when it comes to making legal decisions.

"Non-originalist judges say, ‘We agonize a lot.’ I don’t agonize a lot. Should there be a right to this or that? That’s not my job," Scalia said.

Instead, judges who use originalism when determining cases consider that the Constitution should be applied to decisions according to what the words meant when they were written.

But lawyers debate the meanings of words and often go too far, said the 77-year-old Scalia.

"They are not trained to be moral philosophers, which is what it takes to determine whether there should be, and hence is, a right to abortion, or homosexual sodomy, assisted suicide, etc.," the High Court's longest serving justice said. "And history is a rock-hard science compared to moral philosophy."

Last year, Scalia's legal policy was on display with his dissent of the court's decision to strike down part of the Defense of Marriage Act, saying that the ruling would recognize rights to same-sex marriage in all states, and had "the predictable consequence of diminishing the power of our people to govern themselves."

Scalia also said during his Georgetown lecture that he does not believe the Constitution evolves along with the nation's citizens.

"The non-originalist judge, who decides what the modern Constitution ought to mean — perhaps by applying his favorite principles of moral philosophy, or perhaps only by applying his own brilliant analysis of what the times require — escapes the application of any clear standard, by which we may conclude that he is a charlatan," Scalia said.

When Scalia and the Supreme Court return to session next week, they will face more high-profile cases, including public prayer, affirmative action, and campaign finance laws, reports National Public Radio affiliate WBUR in Boston.

Scalia was the university's inaugural speaker for a lecture series named in honor of the late Robert Bork, a conservative judge whose 1987 Supreme Court nomination was blocked by Senate Democrats.

Related story:

Justice Scalia: Abortion, Gay Rights Are Easy SCOTUS Cases

Justice Ginsburg: Gay Marriage Shows Constitution's Genius
 

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