Anti-democratic judicial activists who place a premium on abstract notions of “human rights” at the expense of what constitutional texts actually say are spreading abroad at a time when U.S. courts have begun to re-discover “orginalism,” Supreme Court Associate Justice Antonin Scalia said in a speech Saturday.
The idea that laws have fixed meanings that transcend generations has gradually been restored to a respectable station in the academic community and in the judiciary, said Scalia during the closing session of the Federalist Society’s annual meeting in Washington D.C.
Scalia credited the 26-year-old organization for focusing attention on key principles enshrined in the U.S. constitutional system that have helped make self-government possible. The Federalist Society includes legally minded conservatives and libertarians who seek to preserve constitutional structures such as the separation of powers.
Unfortunately, the “contagion” of a “living constitution,” one where written phrases can be divorced and reshaped away from their original meaning, has begun to spread internationally, even as U.S. courts have begun to show some improvement, he said.
“There is a belief throughout the world that judges somehow are charged with protecting human rights in the abstract -- never mind the text of a particular constitutional guarantee,” he said. “When one puts on a black robe, one becomes charged with protecting human rights as though we all agree as to what human rights are. There’s enormous disagreement. And to give the responsibility of determining the meaning of that abstract phrase to unelected magistrates is, it’s anti-democratic.”
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