The Rule of Law or The Rule of Lawyers

I have copied the following report from Life Site News because I feel what Justice Scalia is denouncing in the US legal system is extremely relevant to the misuse of the European Convention on Human Rights and the judicial activism of the European Court of Human Rights which regards the convention as a "living instrument". Though a wonderful idea in liberal theory it is in fact a pernicious attack on democracy and the rule of law because the Convention can be used to mean whatever the Court decides it means.

"RICHMOND, Virginia, November 23, 2010 (LifeSiteNews.com) - U.S. Supreme Court Justice Antonin Scalia slammed the modern U.S. judiciary and the high court for using the idea of a “living constitution” to invent new rules and meanings that have led to a “right” to abortion and decriminalized homosexual conduct.

Scalia made his remarks last Friday during a University of Richmond luncheon lecture entitled “Do Words Matter?” The event was covered both by the Associated Press. “The Constitution says what it says and it doesn’t say anything more,” said Scalia to an audience of 250 people, most of them legal professionals and academics.

The 74-year-old jurist, appointed to the high court by President Ronald Reagan in 1986, warned that government by judges is inevitable when the original meaning of legal language in laws and constitutions is not respected. This attitude, he said, allows “five out of nine hotshot lawyers to run the country.”

“Under the guise of interpreting the Constitution and under the banner of a living Constitution, judges, especially those on the Supreme Court, now wield an enormous amount of political power,” continued Scalia, “because they don’t just apply the rules that have been written, they create new rules.”

Scalia pointed out that the high court distorted the meaning of “due process” (referring to legal procedure) in the 14th Amendment to invent new rights under a “made up” concept of “substantial due process.” That has allowed the 14th Amendment to become the gateway to legal abortion and other behaviors, which the constitutional authors never intended and viewed as criminal.

(NB for non American readers the 14th Amendment reads as follows
1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.")

“The due process clause has been distorted so it’s no longer a guarantee of process but a guarantee of liberty,” Scalia expounded. “But some of the liberties the Supreme Court has found to be protected by that word - liberty - nobody thought constituted a liberty when the 14th Amendment was adopted. Homosexual sodomy? It was criminal in all the states. Abortion? It was criminal in all the states.”

He also commented on the modern confirmation process of Supreme Court justices, saying it was akin to a “mini-constitutional convention” because Senators are fighting about how a justice will interpret words. “The way to change the Constitution is through amendments approved by the people, not by judges altering the meaning of its words,” he added.

The AP reports that after the lecture, Scalia signed copies of his new book, “Making Your Case: The Art of Persuading Judges,” and was going to lecture a class on the constitution’s separation of powers at UR’s law school.

Justice Scalia, along with Justice Clarence Thomas, are the high court’s two jurists that firmly embrace an “originalist” doctrine - abiding by the original intent and context of legal language - when it comes to interpreting the U.S. Constitution and federal laws. Scalia has criticized the high court’s 1973 Roe v. Wade decision as an “improper” ruling, saying the founding charter of the U.S. federal government had nothing to do either with abortion or even things like homosexual activity.

If the U.S. Supreme Court reversed its position on Roe, abortion would once again become a criminal matter for the states to decide how to regulate or prohibit.