On the recordFebruary 29, 2016
That leads me to a broader point. There is more at stake than the results of any particular case as important as those cases are. The American people need to consider whether they want their next Justice to decide cases based on the text of the Constitution as it was understood at the time it was adopted or whether Justices are free to update the Constitution according to their own moral and political philosophies. Should Justices apply accepted legal principles through sound reasoning of new facts or should they do legal back flips to reach their desired public policy goals? Of course, this second approach is not law. Instead, it is what Justice Scalia called ``legalistic argle-bargle'' and ``jiggery- pokery.'' Justice Scalia knew the rule of law was a law of rules. The rule of law is not a law of whatever is in the Justice's heart. When a Justice believes, as President Obama does, that any time he views the Constitution as unclear, he can apply his own life experience and empathy for his or her favorite causes. The Justice has a clear incentive to think the Constitution is unclear, but a Justice isn't entitled to read those views into the Constitution and impose them on the American people. Our Constitution sets up a Republic, not a government by judiciary. Unless the Constitution specifically prohibits the democratic process from reflecting the will of the people, the decisions are made by elected individuals who are accountable to the voters.…





