"Get your facts first, and then you can distort them as much as you please." (Mark Twain)

Tuesday, February 14, 2006

Judicial Temperment 

Here's Chief Justice John Marshall - who served in that capacity from 1800 until his death in 1835 (at which time the Liberty Bell is said to have cracked when it tolled in mourning the great man's death) - writing in McCulloch v. Maryland, 17 U.S. 316 (1819):
A constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would, probably, never be understood by the public. Its nature, therefore, requires, that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects, be deduced from the nature of the objects themselves. That this idea was entertained by the framers of the American constitution, is not only to be inferred from the nature of the instrument, but from the language. Why else were some of the limitations, found in the 9th section of the 1st article, introduced? It is also, in some degree, warranted, by their having omitted to use any restrictive term which might prevent its receiving a fair and just interpretation. In considering this question, then, we must never forget that it is a constitution we are expounding.

And now, here's Antonin "Fat Tony" Scalia:
Scalia criticized those who believe in what he called the "living Constitution."

"That's the argument of flexibility and it goes something like this: The Constitution is over 200 years old and societies change. It has to change with society, like a living organism, or it will become brittle and break."

"But you would have to be an idiot to believe that," Scalia said. "The Constitution is not a living organism, it is a legal document. It says something and doesn't say other things."

Correct me if I'm wrong, but it appears to me that Justice Scalia just called Chief Justice Marshall an idiot.

 

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