Justice Scalia has been on a publicity tour for his latest book and giving interviews to major media outlets. One of the things he has said over and over again throughout his time on the bench is that majoritarianism should rule in the absence of a specific right named in the constitution (like most conservatives, he pretty much erases the 9th Amendment — at least when it suits his purposes). Alan Keyes quotes one such recent statement:
“My view is that regardless of whether you think prohibiting abortion is good or whether you think prohibiting abortion is bad – regardless of how you come out on that – my only point is the Constitution does not say anything about it,” Justice Scalia stated. “It leaves it up to democratic choice. Some states prohibited it and some states didn’t. What Roe v. Wade said was that no state can prohibit it.” …
“Now and then we have to tell the majority, the people, that they can’t do what they want to do, that what they want to do is unconstitutional and, therefore, go away. It’s the American people that gave us that power, it’s the American people that said, ‘No, we’re not going to let future legislatures do what they want no matter what.’”
But this is simply too much for Keyes, who thinks God — or his interpretation of God’s will — should be the ultimate arbiter of what is allowed and what is forbidden:
But this correct understanding of the source of constitutional authority begs the obvious question: From whence does the more permanent will of the people, as declared in the Constitution, derive its authority to dictate terms to those who wield the power of government? If the people say that black is white, does their will govern the observations of empirical science? If they say that blacks are sub-humans, does their will alone decide black freedom or servitude? Like the Constitution itself, Justice Scalia assumes that the just powers of government are derived from the consent of the people but, like the injustice of abortion, this is nowhere explicitly stated in the Constitution itself.
To be sure, the Constitution provides for periodic elections to determine who shall take responsibility for certain offices in the government; it even makes clear that the words of the people, as expressed in the Constitution, shall be the Supreme Law of the Land. But if, in the name of history, social justice, or progress for humanity and the earth, someone claiming superior knowledge, virtue or effectiveness challenges the right of the people to wield such authority, where in the Constitution do we find the terms with which to answer their challenge?
We do not find them in the Constitution. It declares the people’s will, without justifying their claim to rule by it. We find that justification in the words of the Declaration of Independence. Therein are presented the self-evident truths which justify the claim that just government must be based upon the consent of the governed. But these truths acknowledge a source of authority that transcends human will, that is, the authority of the Creator, God. So, just as the superior will of the people logically governs the will of the branches of government the people ordain and establish in the Constitution, so the superior will of God logically governs the will of the people, whose right God endows and substantiates.
This means that, contrary to Justice Scalia’s assertion, the arbitrary and unconstrained will of the people, no matter how great a majority it represents, may not claim, by itself, to decide matters that involve God-endowed right. In these matters, the people themselves appeal to God to substantiate their claims. So, when the people’s will contravenes God-endowed unalienable right, they contradict, and so cut off at its source, the superior authority by which they logically claim the right to ordain and establish the constitutional rule of government. Neither the people nor their agents can logically claim to govern by means of an instrument they have thus fundamentally destroyed. The first constraint of constitutional self-government of, by, and for the people, is the one that requires respect for its premises. If that foundation be destroyed, no Constitution will do.
Alan Keyes is a theocrat to the core. Scalia is not, but his jurisprudence does sometimes — not always, only sometimes — reaches the same result by a different path.
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