Scalia Shows His Mettle

If there was any doubt Justice Antonin Scalia is qualified to be Chief Justice, that doubt was erased yesterday in a 35-minute speech where he blasted the recent 5-4 Supreme Court decision to overturn the juvenile death penalty based on "evolving notions of decency."

Scalia noted that since the Warren Court, Justices have been all too willing to interpret new rights not included in the Constitution, at the expense of our democracy.

Constitutional law expert Mark R. Levin appears to agree in his current New York Times best-seller, Men In Black: How the Supreme Court Is Destroying America. Levin goes further back than the Warren Court to the Marshall Court citing Marbury v. Madison as the tipping point where the court granted itself the power to declare acts of the other branches of government unconstitutional, which had the immediate effect of upsetting the balance between the executive, legislative and judicial branches.

David Price has an excellent explanation of the current living Constitution theory, and why you should care.

If you are pro-choice, you need to understand that you do not have an inherent Constitutional right to abortion, that was a decision granted by activist jurists, just as was the recent juvenile death penalty case. While Rehnquist's impending retirement is almost assured and not necessarily going to change the overall tenor of the court, John Paul Stevens is 80, and both Ginsburg and O'Conner (a liberal and a "swing" justice) are into their 70s.

All it takes if for a moderate or liberal justice to retire, and a strong conservative to replace them, something that is growing not only possible but probable as Democrats continue to grow weaker in Congress. If that conservative justice is also a believer in the living Constitution theory, you can expect decision such as Roe v. Wade, the juvenile death penalty case, and literally dozens of other standing examples of Court decisions to be retried and overturned based upon new "evolving notions of decency."

While this would no doubt thrill conservatives in the short-term, it shows the weaknesses of the living Constitution theory, providing us with a shaky foundation for our nation which could again tilt the other way when another justice or two retires.

The Constitution is not a document created on a whim to be changed lightly, but an effort of brilliant men who struck a delicate balance between judicial, legislative and executive branches. That balance has been steadily eroded by a self-important judiciary, and it is important, no vital, that our next Chief Justice understands that wrong and redresses it.

It appears Antonin Scalia may be that man.

Note: More about the current and future makeup of the court via History.net.

Update: More commentary can be found at Outside the Beltway, Penraker rips WaPo's Dana Milbank in his coverage of the speech, Ankle-Biting Pundits focuses on the Roe v. Wade implications, Patterico agrees strongly with Scalia's comments, and QandO weighs in on activist jurists.

More updates as they develop..