RUSH: Justice Antonin Scalia the US Supreme Court, “criticized” his own court’s “recent decision to strike down the juvenile death penalty, calling it the latest example of politics on the court that has made judicial nominations an increasingly bitter process.” He spoke for 35 minutes Monday night. Scalia said, “Unelected judges have no place deciding issues such as abortion and the death penalty. The court’s 5-4 ruling on the first of March to outlaw the juvenile death penalty based on ‘evolving notions of decency’ was simply a mask for the personal policy preferences of the five-member majority.” Personal policy preferences? Where have I read that phrase before? Mr. Snerdley, can you take a wild guess? Where have I read that phrase, personal policy preferences? I’ve read that phrase in our old buddy Mark Levin’s book, Men in Black “personal policy preferences,” and it is the precise way to describe what these judges are doing. It’s a more effective way than simply saying imposing their own morality.
Personal policy preferences, evolving notions of decency, have nothing to do with deciding the law. But they have become the main way certain justices and judges across the land are determining and deciding the law. Scalia is upset about it. He said this. “If you think aficionados of a living Constitution…” and that is a derogatory term: a living, breathing Constitution, one that bends and shapes and forms and flakes to accommodate the various pop culture evolution of American society. That’s what a living Constitution is and original intent aficionados do not believe in it.
So he says, “If you think aficionados of a living Constitution want to bring you flexibility, think again. You think the death penalty is a good idea, fine. Persuade your fellow citizens to adopt it. You want a right to abortion? Persuade your fellow citizens and enact it. That’s flexibility.” When a court rules one way or the other on something, you lose all flexibility, particularly when it’s matters have nothing to do with the law. “‘Why in the world,’ Scalia says, “would you have the Constitution interpreted by nine lawyers?’ Scalia, who has been mentioned as a possible chief justice nominee, outlined his judicial philosophy of interpreting the Constitution according to its text as understood at the time it was adopted, citing the example of abortion. Scalia said, ‘Unelected justices too often choose to read new rights into the Constitution at the expense of the democratic process. Look at abortion.
It’s off the democratic stage. Prohibiting abortion is unconstitutional, now and forever, coast to coast until I guess we amend the Constitution.’ He blamed Chief Justice Earl Warren, who presided from 1953 to ’69 over a court that assaulted racial segregation and expanded individual rights against arbitrary government searches for the increased political role of the Supreme Court, citing Warren’s political background. Warren was governor of California and the Republican vice presidential nominee in 1948.
“Scalia said, ‘Here you have a chief justice who was a governor, a policy maker, who approached the law with that frame of mind. Once you have a leader with that mentality it’s hard not to follow.’ [He] said increased politics on the court will create a bitter nomination fight for the next Supreme Court nominee since judges are now more concerned with promoting their personal policy preferences rather than interpreting the law. ‘If we’re picking people to draw out of their own conscience and experience a new Constitution, we should not look principally for good lawyers. We should look to people who agree with us,’ he said, explaining that’s why senators increasingly probe nominees for their personal views on positions such as abortion,” because he’s exactly right. The left has turned the Supreme Court and the federal judiciary not into a body that examines and interprets law and the Constitution but rather imposes its personal policy preferences on the country as law.
Let’s go to the audio sound bites and we’ve broken a rule here, and I can do that because I make the rules and I’m the host and it’s my show. Normally I’ve given Cookie an admonition over the many, many years: No sound bites over one minute. Beyond a minute, people get bored, lose attention, and sometimes the other way around, sometimes people make so many good points in one minute that it’s a start-and-stop-the-tape circumstance so just always err on the side of brevity. In the case of Justice Scalia, we have expanded this rule and some of these bites are a little bit longer than a minute as is the first one; it’s a minute and a half. Here’s what he says about being an originalist.
SCALIA: I am one of a small number of judges, professors, lawyers, who are known as originalists. Our manner of interpreting the Constitution is, to begin with the text and to give that text the meaning that it bore when it was adopted by the people. I’m not a strict constructionist despite the introduction. I don’t like the term strict construction. I do not think the Constitution or any text should be interpreted either strictly or sloppily.
It should be interpreted reasonably and many of my interpretations do not deserve the description “strict.” I do believe, however, that you give the text the meaning it had when it was adopted. This is such a minority position in modern academia and in modern legal circles that, you know, on occasion I’m asked when I’ve given a talk like this a question from the back of the room, “Justice Scalia, when did you first become an originalist?” As though it’s some kind of weird affliction that seizes some people, you know, when did you first start eating human flesh, or something. Although it is a minority view now, the reality is that not very long ago originalism was orthodoxy.
RUSH: Justice Antonin Scalia. He was speaking at the Woodrow Wilson Center, a think tank in Washington last night. Here he is on the confirmation process how the living Constitution will destroy it.
SCALIA: The worst thing about the living Constitution is that it will destroy the Constitution. You heard in the introduction that I was confirmed close to 19 years ago now by a vote of 98-nothing. The two missing were Barry Goldwater and Jake Garn. So make it a hundred. I was known at that time to be, you know, in my political and social views, fairly conservative. I was known to be a good lawyer, an honest man, somebody who could read a text and give it its fair meaning and, you know, judicial impartiality and so forth, and so I was unanimously confirmed.
Today, barely 20 years later, it is difficult to get someone confirmed to the court of appeals. What has happened? The American people have figured out what is going on. If we’re selecting lawyers, if we were selecting people to read a text and give it the fair meaning it had when it was adopted, yes, the most important thing to do is to get a good lawyer.
RUSH: But if you’re not interested in the law, if you’re not interested in the Constitution, preserving it and interpreting it, then don’t get lawyers, go out and get people who agree with you on things. This is what the Democrats are doing: Go out and get people who agree with you on things, put them on the court, and have them institute their personal policy preferences in their decisions and make that law, call that law. This expands. It is said the Constitution “lives and breathes,” and in fact what happens is the Constitution gets chipped away and chipped away and ultimately Scalia’s fear is that it will be rendered useless, will not become recognizable. (Marbury v. Madison Established Supreme Court’s Role As Final Arbiter of the Constitution) Thomas Jefferson wrote in a letter to Edward Livingston in 1825. “This member of the government, the court, the judiciary, was at first considered as the most harmless and helpless of all the government’s organs, but it has proved that the power of declaring what the law is, by sapping and mining slyly and without alarm the foundations of the Constitution can do what open force would not dare to attempt.”
In other words, people would not attempt to mount a military action against the country to change the Constitution but they don’t have to. They’ve gotten control of the Constitution via the judiciary and are having the Constitution become whatever their personal policy preferences are.
RUSH: We are reviewing a speech given last night in Washington by the justice of the US Supreme Court, Antonin Scalia at the Woodrow Wilson Center. Let me tell you why we’re doing this. We’ve been talking about judicial activism; judicial nominations being held up by the filibustering Democrats which is in violation of the Constitution itself. The “nuclear option” is not one that Republicans would employ to stop the Democrat filibuster. The nuclear option is the Democrats filibustering judicial nominees, not provided for in the Constitution. Senate rules say a simple majority vote determines who is confirmed to the bench and who isn’t. The Democrats’ filibuster thus requires 60 votes essentially to confirm a justice. This was not intended; this is not part of the rules, and it’s something new in order to stop judges being confirmed that do not agree with the Democrats.
People call me and say, “Well, Rush, what can we do about this? Why doesn’t the president just refuse to obey these judges, like the one yesterday that said the 13 Yemeni detainees at G’itmo have to stay there; they can’t be sent elsewhere because they might be tortured.” A federal judge, US district judge just inserting himself in the war on terror, and of course the real question is, “Wait, wait, wait, wait.” As we said yesterday, “I thought they were being tortured at G’itmo. I thought we were the bad torturers! What do you mean they’re going to be treated worse if they’re sent somewhere else?” That’s just a little side thought.
The fact of the matter is that if the president decided to just defy one of these judges there would be impeachment proceeds started two minutes later. Democrats are waiting for any opportunity they can for that, and the fear is some of these moderate Republicans who want to be loved by the media would join in the proceedings because that would certainly endear them to the media who would love to see Bush in trouble and impeached and this sort of thing. So the only way around this is to inform the public, and just like it’s taken us 15 to 20 years here to bust the media monopoly and to bust the Democrat media coalition and create a new media that provides the truth rather than the liberal slant on everything, just as it took years and years and years to wrest the House of Representatives away from the Democrats back in 1994 and they haven’t gotten it back since and they lose their numbers in the Senate right along with their numbers in the House since 1994.
In fact they wouldn’t have even had the Senate during Bush’s first term had it not been for Jumpin’ Jim Jeffords switching from Republican to Independent and voting with the Democrats. So, you know, it’s taken a long time to bring this about. In the same way it was brought about, informing the public, the public ends up voting. The people of this country get what they generally want. It’s not always factual. I mean, there are exceptions to everything, but it’s the way it works.
It’s a representative republic. Same thing here: There are reforms that are possible to take care of the runaway judiciary, the tyrannical judiciary. You could term-limit judges. You could give Congress veto power. Congress could vote itself. We could ask Congress, give yourselves veto power over Supreme Court decisions. Make it a supermajority requirement to veto a Supreme Court decision, but do it. These are all options. They’re all possible, but it’s going to take time to get them enacted, and it’s going to require the American people, i.e., you, becoming informed and energized and mobilized on these things just as it’s been on all the other things that we can say that we are winning on, it’s been taking 15 or 20 years to do this. But you can’t just say, “Well, I’m not going to obey this. I’m not going to obey that. To hell with that judge!” That’s not the way to go about this.
So the reason we’re spending so much time on this is the reason we spend time on a number of other things, information, education, mobilization, inspiration, you name it. I mean, that’s the name of the game here. We’re in the arena of ideas, folks. That’s where we compete. We want to win genuinely and legitimately with a majority of people who know exactly what they want and how to get it and are voting thus. We don’t want to win with PR. We don’t want to win falsely because we want the victories to be genuine. In fact, I got a great e-mail. Let me find this. It’s a great e-mail from a subscriber to my website yesterday, and I put it here near the top of the stack. It’s from a guy in Denver. His name is Keith.
“Dear Rush: I’ve been listening to your program for about ten years and I want to comment on your remarks after both of Clinton’s election victories. The liberals were saying that you had been defeated and that you should be relegated to the trash heap of outdated ideas. Your response was that you were not discouraged but rather excited about having lots of show material because there would be so much political humor originating in the White House.” Now, that’s not entirely accurate. I was optimistic, and I did stay up because it was only an election, and you win some and you lose some. But a lot of people come to me and say, “I bet you loved having Clinton in the White House, all that show material.” No, folks. I’d much rather liberals be out of power.
They are more funny; they’re funnier, they’re wackier, and they make more foolish moves when they’re out of power trying to gain power back. When they’re in power, they’re more dangerous. You’ve got to oppose them. You’ve got to keep your eye on them. Those eight years of Clinton were agony for me, if I may be honest for you. It is not something that I celebrated. “Oh, wow, Clinton is in office! Wow, my show is going to be great” That’s not how I looked at it and it’s not how I look at it now. The way I look at it is my success does not depend on who wins elections. I can’t control that. But nevertheless, Keith in Denver says:
“Contrast your optimism and your good-time, your attempt to enjoy yourself, having a good time to the current wailing and gnashing of teeth on the part of the left. It’s obvious to me that you have shown predictably more class than the left. Yours is the arena of ideas. The left is of the opinion that only power is viable, because their ideas do not bear the light of scrutiny. They can’t win in the arena of ideas. The only way they can enact them is via power, and that’s what this judiciary battle is all about. They can’t win in the arena of ideas; they can’t win legislatively, so they need judges to institute their personal policy preferences as law, and that has been happening, just as the left has taken over the college classroom, and is indoctrinating young students with that fare, with that bilge and gunk, and that’s another area that is under assault as well from people on our side.
If the left were able to face defeat with the same grace and long-term approach you’ve always shown, I think they would be a more formidable opponent. Their character, their agenda and philosophy have all shown to be wanting when faced with political reality and the light of intellectual exposure. Thank you for remaining America’s Truth Detector as truth will ever be victorious.” This is Keith in Denver. The reason I read that to you is not to give myself a pat on the back because, frankly, that happens to me all the time. The reason I read this to you is to tell you, this is how you win. You win in the arena of ideas.
You keep battling with your ideas. You persuade more and more people, but you do it openly and honestly, and you tell people who you are. You tell people what you believe and then why, and then you bring them along if you can, and that’s what’s going on with this judicial fight now. It’s not something that’s going to be fixed tomorrow. It’s not something that’s going to be fixed next year. It’s something that’s going to require constant attention just as all these other things. Now, these last 15 or 20 years, if you’ve been paying attention, during the whole time, I’m sure during the 15 or 20 years, there were rough days, rough nights, you thought it was all going to hell in a hand basket. I know because you would call and tell me, “Why around the Republicans fighting back, why didn’t Bush fighting back?” And yet you go back 15 or 20 years and compare where we were to today, and you cannot deny the progress that has been made. And now everybody is a little bit more optimistic than they’ve been in a long time.
The same thing will happen in these battles. To that end it is all our great fortune that Justice Scalia has decided to take off the robes, leave the bench and go out and make these speeches. When he first started doing this last year I applauded the move and I openly requested on this program that he do more of it, and he is doing more of it. I have no idea why. I don’t care why. I just am grateful that he is. Let’s go back and listen to more of his sound bites from this speech last night in Washington, D.C. Here he is on the seductive nature of the living Constitution.
SCALIA: Perhaps the question should be, how did we get away without having it developed much sooner? I mean, it’s enormously seductive to a judge. You know, the living Constitution judge is a happy fellow. You know, he comes home at night, and his wife says, you know, “Dear, did you have a good day on the bench?” “Oh, yes! You know, we had a constitutional case today, and, you know what? The Constitution meant exactly what I thought it ought to be!” Well, of course it does, because that’s your only criteria. That’s a very seductive philosophy.
RUSH: It is. It’s power. You get on the bench, the Constitution can mean whatever you want it to mean. You can have a great day. That’s very seductive to somebody who is power mad, to somebody who is arrogant, to somebody who really believes they know more than anybody else, to an elitist, to people that look out over the country and see a great unwashed mass of hoi polloi too stupid to make up their own minds about things. Oh, yeah, that is really seductive. “Constitution meant exactly what I thought it ought to mean.” Well, that’s not what it means. Nowhere in the Constitution is it written or is it said or anywhere else in the Federalist Papers that the Constitution means what a judge or a series of judges think it means. It means what it says, and because it doesn’t say what the left wants it to say on a number of issues, they have to have a living Constitution, and judges who believe in a living Constitution and judges who will impose their personal policy preferences, their own morality, if you will, as law.
That’s what’s happening now. Not to mention… Well, and to mention. Let’s go ahead and be blunt about it. Why do you think these judges and justices are seeking guidance, counseling, and advice from international customs? Because they can’t find any framework or basis for the decisions they want to make in the United States. So they’ve got to go elsewhere, and then they say, “Well, you know, we’re behind the eight ball in this country, we’re a little bit behind the trends. International law is running away ahead of us. We’ve got to catch up with the rest of the world,” blah, blah, blah, blah, blah, and so we get rulings based on what’s happening in international law, but really it’s not what’s happening in international law, it’s the personal policy preference of a particular judge or a series of them who can find some so-called legal framework for what they want the Constitution to say somewhere around the world. That’s not interpreting the Constitution. It’s not interpreting the law. It’s instituting their personal policy preferences as the law.
RUSH: Back now to Justice Scalia, last night speaking to an audience at the Woodrow Wilson Center in Washington. An audience member says, “Could it be related to the expansion of democracy after World War II, this living Constitution business to the rapid changes in society after World War II? There has to be an explanation. You know, it didn’t just come out of nothing.”
SCALIA: Well, you know, it could come out of people. It begins to sweep the judiciary at least with the Warren Court. You have a chief justice who was a governor, a policy maker, who approached the law with that frame of mind. And once you have a leader with that mentality, it’s tempting to follow into the lovely fields that he’s piping us into, you know.
RUSH: Meaning here you had a man that did not have a legal background per se, he was a politician, the governor of California, Earl Warren, personal policy preferences as law, gives cover to other justices who want to follow along, made it easy to follow rather than for somebody to lead on this, he was the original leader. This is Scalia’s theory. And this next bite I absolutely love. Here’s Justice Scalia and his thoughts on moderates.
SCALIA: You hear, you know, in the discourse on this subject, people talking about moderate, you want moderate judges. What is a moderate interpretation of a text? You’re halfway between what it really means and what you’d like it to mean? There’s no such thing as a moderate interpretation of a text. Would you ask a lawyer to draw me a moderate contract? The only way the word has any meaning is if you are looking for somebody to write a law, to write a Constitution, rather than to interpret one. The moderate judge is the one who will devise the new Constitution that most people would approve of.
So, for example, we had a suicide case some terms ago, and the court refused to hold that there is a constitutional right to assisted suicide. We said we’re not yet ready to say that, you know, stay tuned in a few years, the time may come, but we’re not yet ready. And that was a moderate decision because I think most people would not want to — if we had gone, leaped into that and created a national right to assisted suicide, that would have been an immoderate and extremist decision.
RUSH: He’s right on the money here, this business of moderate halfway, you go here, you go there, basically what he’s saying is a moderate tries to find consensus and what is consensus but the absence of leadership. But it has no place interpreting the law. Okay, you take half of what this says and half of what it doesn’t say and you combine the two to keep everybody happy? So my man, Antonin Scalia, nuking the concept of moderate judges or moderate anything else.
RUSH: All right, three more bites from Justice Scalia. Let’s get to the first of the three. This is an excerpt from the speech about how to Senate has bastardized the confirmation process by only confirming moderates and how that is endangering the Constitution.
SCALIA: When the Senate interrogates nominees to the Supreme Court, or to the lower court, you know, “Judge so-and-so, do you think there’s a right to this in the Constitution? You don’t? Well, my constituents think that there ought to be, and I’m not going to appoint to the court somebody who’s not going to find that.” When we are in that mode you realize we have rendered the Constitution useless, because the Constitution will mean what the majority it wants to mean —
RUSH: Stop the tape. Ah, ah, ah. No, we’re talking about the Constitution will mean what the minority wants it to mean in this case.
SCALIA: — are representing the majority, and they will be selecting justices who will devise a Constitution that the majority wants, and that, of course, deprives the Constitution of its principal utility. The Bill of Rights is meant to protect you and me against, whom do you think? The majority. My most important function on the Supreme Court is to tell the majority to take a walk. And the notion that the justices ought to be selected because of the positions that they will take that are favored by the majority is a recipe for the destruction of what we’ve had for 200 years.
RUSH: I would add to that. I would say the notion that the justices ought to be selected because of the positions they will take are favored by themselves, is a recipe for the destruction of what we’ve had for 200 years because that’s what we’ve got going on. We have the implementation of personal policy decisions and preferences, personal policy preferences. If five justices of the Supreme Court personally believe that it’s wrong to execute minors, guess what? That’s going to become the law of the land, and if they can’t find any backup for that, in law in the United States — and in fact if they have to overrule 19 states who say it is constitutional in those states, if they have to go elsewhere to international law, they will do it to implement their personal policy preferences.
And so he’s right. These questions that nominees get, “What are you going to do about abortion, sir?” If they give the wrong answer on that, they’re going to be disqualified by a certain number of people who think the Constitution lives and breathes for the sole purpose of guaranteeing abortion when it says nothing about it. It ought to be an issue decided democratically by the people of this country, state by state, which was what would happen if it were ever overturned at the US Supreme Court.
But this implementation of personal policy positions and preferences has now superseded what the purpose is, and that’s the interpretation of law, i.e., the Constitution. Now, some of you might say, “Rush, aren’t you only arguing this because your personal preferences are losing, and you want people who are going to implement your personal preferences?” Only to the extent that my personal preference is that that the Constitution not be destroyed, that the Constitution be interpreted according to its original text, it’s original intent, and because I believe in the Constitution as the glue that’s held the country together, and if you start ripping it apart, you start disempowering, if you start rendering it useless, then you have begun to chip away at the very foundation of the country.
That is my concern, not my own personal policy preference. I can handle losing in the arena of ideas, because there’s always another day to come back and try to win but when you lose in the arena of ideas disguised as a Supreme Court decision that has the force of law on it, you’re stuck, and so when people who cannot win in the arena of ideas via the democratic process get themselves on courts and are able to implement their personal decisions, their personal preferences as law, we have a problem, and that’s what’s happening.
RUSH: Last night this was on C-SPAN, Justice Scalia speaking at the Woodrow Wilson Center. He got a question from the audience. “Mr. Scalia, you started by talking about Roper. If we go back to the court’s concept of involving standards that it used in Roper, Roper and Adkins, you said that in looking at capital punishment cases, and the whole question of whether mentally retarded people or people below the age of 18 should be put to death, you said that the legislature, if there are evolving standards of decency, which should be used to interpret the Eighth Amendment, that they should be enunciated by the legislatures or sentencing juries. So I’m wondering given that are you X-ing out the possibility of real judicial review for Eighth Amendment capital cases, could you just kind of explain your Eighth Amendment jurisprudence a bit?”
SCALIA: I’m saying the Eighth Amendment ruling means what was cruel and unusual and unconstitutional in 1791 remains that today. The death penalty wasn’t and hence it isn’t, despite the fact that I’ve sat with three colleagues who thought it had become unconstitutional. Executing someone under 18 was not unconstitutional in 1791, so it is not unconstitutional today. Now, it may be very stupid, it may be a very bad idea, just as notching ears, which was a punishment in 1791, is a very bad idea, but the people can change.
The people can eliminate those stupidities if and when they want. To evolve, you don’t need a Constitution. All you need is a legislature and a ballot box. Things will evolve as much as you want. They can create a right to abortion. They can abolish the death penalty. They can legitimize homosexual sodomy. All of these things, all of these changes can come about democratically. You don’t need a Constitution to do that. And it’s not the function of a Constitution to do that.
RUSH: You realize the brilliance in this statement? You realize? This one sound bite sums up where we all are, and why have all these things become constitutional when the American people have not voted on them, have not changed them, why have all of these things that have become constitutional which were not part of the Constitution, become so? It’s simply because a certain part of our ideological spectrum is unable to win legislatively. They are unable to win at the ballot box and realizing that they have sought an end run, and the end run is to put their own people on courts as judges and render their decisions according to their personal policy preferences. “I think the Constitution was wrong in 1791 on capital punishment. It shouldn’t have been in there.
I don’t think it should be there, and I don’t think we should have capital punishment of anybody, certainly not people under 18, and so that’s how I’m voting, because I have the power, I’m a judge,” and that’s how these things are changing. They’re not evolving by virtue of the will of the people. We are a representative republic. They are not evolving by virtue of how they were designed to change in this country, electorally, democratically, elected representatives of the people. They are changing by judicial fiat, the personal policy preferences of judges.
Now, you might say, “Well, you have to trust. You have to trust the people in order to agree with Scalia, that the people will do the right thing.” Well, guess what? Guess who doesn’t trust you? Guess who doesn’t trust you to do the right thing? All the way from Kofi Annan and the UN, all the way down to Howard Dean, Ted Kennedy, John Kerry, Dingy Harry Reid, and all of the other liberal Democrats that have come and gone in our lifetime. They don’t trust you. You’re not smart enough to realize how stupid the Constitution is. They are smart enough, and since you don’t have the brains, the wherewithal, the sense of judgment to make the right decisions in your life or anybody else’s, they have to do it for you. Ergo, we get big government in charge of more and more and more of your life.
From your retirement, to your out-of-work circumstances, to your taxes, to the regulation of what you can do with your own property. I’ve got a story in the Stack of Stuff. A guy moved some sand on his own property. He’s going to jail for violating the Wetlands Act! That Wetlands Act is the result of a bunch of wacko environmentalists who think you don’t know enough to take care of your own property.
They’re going to do it for you. They don’t have the power to do it under any normal confine, yet they have created it for themselves, and they’ve done it by virtue of one of two things, either a government agency that can just decree something, or via judges who have found along with them that you’re stupid, that you’re incompetent, that you are not capable nor worthy of trust — and so Scalia says here the death penalty was not cruel and unusual punishment in 1791. The Founders of our Constitution did not consider the death penalty cruel and unusual, and so I’m not going to consider it cruel and unusual today.
The people who do consider it cruel and unusual have not fought to get it changed at the ballot box through the electoral process or the democratic process but rather from judges on the courts. He says it may be stupid, some of these things from 1791, some of these laws. Fine. If the Second Amendment is stupid, if it doesn’t mean today what it meant then, then change it democratically, then let the people vote on it. They’re the ones who ultimately decide. This is a government of, by, and for the people, not of, by, and for judges. So this one bite, sound bite number nine in our roster today with Justice Scalia, sums up almost totally the circumstances and situation that we find ourselves in.
RUSH: All right, got one more sound bite here from Justice Scalia, and he gives a great example here of how the court used to interpret the Constitution as it’s written, and then the people would amend it if they wanted to change something. These days the court just changes the meaning of the text, according to the personal policy preferences of the judges.
SCALIA: Consider the Nineteenth Amendment, which is the amendment that gave women the vote. It was adopted by the American people in 1920. Why did we adopt a constitutional amendment for that purpose? The equal-protection clause existed in 1920; it was adopted right after the Civil War — and you know that if that issue of the franchise for women came up today, we would not have to have a constitutional amendment. Someone would come to the Supreme Court and say, “Your Honors, in a democracy, what could be a greater denial of equal protection than denial of the franchise?” and the court would say, “Yes, even though it never meant it before, the equal-protection clause means that women have to have the vote.”
In 1920 they looked at the equal-protection clause, and they said, “What does it mean? Well, it clearly doesn’t mean that you cannot discriminate in the franchise. Not only on the basis of sex, but on the basis of property ownership, on the basis of literacy, none of that was unconstitutional,” and therefore since it wasn’t unconstitutional, and we wanted it to be, we do things the good old-fashioned way and adopted an amendment.
RUSH: And that is how the Constitution breathes; that is how the Constitution lives. Now, this is going to be a hard thing for people to understand given the woeful history education that is presented to the average junior high school and high school student today, but when the Constitution was written, you had to own property to vote. You couldn’t vote if you were a female. You couldn’t vote if you were a slave, and you couldn’t vote if you didn’t read. This was what the Founders in the early days of the Constitution, the founding of the country, property rights and the right to own property were considered as important to the survivability of the nation as freedom of speech — and so a lot of the republic’s future centered around people who were educated, informed, property owners and this sort of thing.
Well, as time evolved and the country grew and so forth there were people that said, “Ah, even though that may be constitutional, it’s wrong as we live today, we gotta change it.” So they amended the Constitution. They didn’t have a bunch of judges who said, “You know, the Framers were wrong here. We’re just going to implement our own views on this.” The people amended the Constitution via the amendment process, and that’s how the Constitution’s amended. Yeah, it takes time. As Mr. Snerdley asked me during the break, “I agree with Scalia on a lot of this, but what about civil rights legislation? Look how long that would have taken if we’d have waited for the will of the people on civil rights legislation,” and I said, “Look how long it took to get there because of the Supreme Court!”
The Supreme Court, back in the Dred Scott days, found slavery was constitutional. I mean the court does not always do the right thing. Your question is rooted in the notion that the Supreme Court is the final arbiter and they always do good, or even they sometimes do good, and so if they sometimes did good or one type did something really good or so forth then we gotta give them the benefit of the doubt. The fact is we’ve seen racists; we’ve had sexists; we’ve had all kinds of wackos that have been judges on the court. Roger Taney, the chief justice of the Supreme Court in the Dred Scott decision actually affirmed the notion that black people were two-thirds or three-fifths of a person, and they were worthy of no more than being slaves. Our very own Supreme Court.
So how long did they delay civil rights? Instead of giving them all the credit in the world for finally getting around to it and making it happen, how long did they delay it? He says, “Well, if they leave that up to the voice of the people and the blacks were the minority forever, it would have never happened.” Well, we don’t know because it didn’t go that way because the fact of the matter is it did happen in a number of different ways. You could make an argument for this in a number of different ways, but the point is this, it boils down to people who have a view of this country, that thinks the country owes its existence to the Constitution.
The Constitution is a brilliant document, and when applied it will always work, that fealty to the Constitution has provided and guaranteed the systems whereby we remain free. The Bill of Rights. People talk about the Bill of Rights ”granting us our freedoms.” The Bill of Rights was written to protect us from one thing, and that was the government. The Bill of Rights tells us what our rights are that the government cannot abridge and yet what has happened? We’ve abridged the First Amendment. We’ve abridged free speech with campaign finance reform, and how did it come about? We had two senators who were all for it, McCain and Feingold under the guise that they wanted to get the money out of politics, that money was corrupting, just the presence of money corrupted people. It was not their fault, these elected officials, that they were corrupt. It was the fact we give them so much money! So we had to get the money out of it. In other words, it was the system that was corrupt, not the people. That’s 180 degrees wrong.
It is corrupt people which pollute the system. The system worked. So all of a sudden, and because of the political concerns and where the various people running for reelection didn’t want the hassle of opposing this because, you know, the American people get all riled up about what they think is all the money in politics, yet the money we spend advertising on politics pales to the money we spend advertising chewing gum, for crying out loud, or other similar products, and so everybody said, “Well, we’ll go ahead and vote for it and let the court fix it. The court will never find that this is constitutional.”
Oh, guess what? The court did. We trusted the Supreme Court to do the right thing rather than stand up — well, some of us did — trusted the court to fix it so that we wouldn’t have to take a stand. I’m talking about our elected officials, and the court, huh, found it’s constitutional to limit speech during political campaigns! The exact reason the First Amendment was written was to protect speech, political speech at all time and any time. But not this court, this court found that the McCain-Feingold law was constitutional and thus only certain people are allowed to say certain things using money within 30 or 60 days before a primary or general election. The Constitution has been stood on its head. One of the reasons this has been allowed to happen is the woeful education of the people of this country when they are in the first grade all of the way to the twelfth grade.
Simple history, simple government basics 101 and so there was not an uproar about it because most people don’t see themselves as giving million dollars of dollars; they see themselves giving none or a couple or 15 or 20 or what have you. They don’t think they’re the problem and so there’s not much they think they can do about it. But the Constitution has just — I mean, the Bill of Rights? Amendment One has just been shredded or was with campaign finance reform — and, by the way, how about this notion that we had to have this to get money out of politics? Ever heard of the 527s? They left a little loophole in there. They said you can’t give money to the parties, but guess what? You can give it to the MoveOn.orgs and you can give it to the Americans Coming Together, Hillary Clinton and George Soros’ deal.
We heard more about money polluting politics in the last election than any time prior to campaign finance reform — and, of course, the loophole was all constitutional, but still the whole thing was a sham, it was another shell game, folks. So the Bill of Rights does not tell you what you can do. The Bill of Rights tells the government what it can’t do. The Bill of Rights, the first ten amendments, protects citizens, individuals, against the government. That’s what the Founders were afraid of, was a growing, expanding, omnipotent government — and when you have judges that sit on the court who institute their own personal policy preferences rather than implementing what the Constitution’s original intent was. For example, let’s look at abortion. Let’s look at Roe vs. Wade. A lot of people will say, “Okay, Rush, it sounds real good here what you’re talking, but I know if you’re one of those judges you’d do the same thing these guys are doing, you would implement what you believe is right.” Well, I’m not a judge, and I’m never going to be on the Supreme Court, but I can tell you, let’s look at Roe vs. Wade back in 1973.
If somebody wants to seriously make the case, intellectually or judicially or legally that the Constitution even addresses the subject of abortion, I will be glad to listen to it, but I’m going to tell you I’m going to have cotton in my ears because nothing you can say will convince me that it says anything about it. But some judges decided that it did under some guise, under some right to privacy, which is also not in the Constitution, by the way. There is no right to privacy specifically enumerated in the Constitution, but the right to privacy gives a woman the right to do with her body whatever she chooses. So we can’t tell a woman what she can or can’t do with her body, but we do all the time.
Prostitution is illegal. Taking drugs is illegal. We legislate what men and women can do with their bodies all the time, but somehow when it comes to reproductive rights: Hands off, can’t touch it. Now, if I’m a judge and this case comes up, I say, “Why are we even talking about this? Why are we even hearing this case? The Constitution doesn’t address it. We have no basis to rule on this. The only basis we can come up with is what we individually think about it, and that’s not what we’re here for.” By the same token if I’m a judge today and somebody comes and says, “You know, Rush, taxes are too high, they’re punitive and so forth, we want to overturn them,” I would say, “The Constitution says via Sixteenth Amendment that income tax is legal, so if you want to change the tax system, don’t go to the court. Go to your legislatures. Go to Congress.
That has nothing to do with it here.” Even though I would love to change the income tax system myself, the place to do it is not the courts, especially in all these freedom of speech and campaign finance reform. The death penalty case for minors came up recently, and we had, of course, a number of states who said that sodomy was illegal in their states. The US Supreme Court said, “Ah, you people are wrong. You’re living in the Dark Ages. We’re behind the ball, and especially when it comes to international law. International law has legalized this, so we’re going to legalize sodomy all across the country. We’ve just made it constitutional.”
I guarantee you, that if you go back and you read anything about the Founding Fathers, you will not find anything in their writings, their speeches, or their thoughts in which they thought sodomy was constitutional or legal. (ruling) It never entered their mind, having become part of the Constitution, and yet this very Supreme Court has decided to overturn a number of states, they used a Texas case to do it, and just proclaim it constitutional. They did this with the death penalty as well. Death penalty for minors, 19 states, said it was okay. We want to execute minors who have committed capital crimes. US Supreme Court said, “We’re behind the eight ball on this. We’re behind the curve. We’re lagging behind international customs.
We don’t think we should be executing people under 18, minors,” and so they couldn’t find any evidence for this in US case law or the Constitution, so they had to go elsewhere. This is a bastardization of the whole thing, and the whole point is that when you have the Supreme Court of the land which has abrogated to itself or arrogated to itself the whole concept of what’s constitutional and what isn’t, deciding to look outside this country’s case law and other institutions, to find out what’s constitutional here, what greater bastardization of the Constitution can there be than to say, “You know, the international rights of the child treaty that, takes precedence over US law.” Wait a minute, we didn’t even ratify that treaty!
“Doesn’t matter. It’s a good treaty. We should have ratified it. I as a justice think we should have and so I’m going to rule what I think the country ought to do,” and this is the kind of thing that is happening, this is what Scalia is talking about. That’s why Levin wrote his book, Men in Black, which if you haven’t read you should because it gets into historical quotes from the Founders, backing up every point that I have made. It’s a crucial thing, and what’s at stake here is not what I think. What’s at stake here is not my winning or prevailing on issue after issue. What at stake here is preserving the foundation of the country as we know it. We have a responsibility to leave this country in better hands that we inherited from our ancestors, those who are going to come after us.
It’s like homosexual marriage. I’ll never forget after the election when Bush won the election, ran into a number of people who were just despondent and depressed because their single issue is gay marriage, and they said, “We don’t even feel like Americans. Why, the people of this country just voted it down.” So they want to get judges like this guy in San Francisco to say it’s okay, it’s constitutional, to deny gay marriage is denying civil rights, human rights and all that, and I said to them, “You know, it would take me five sets of hands to count the number of issues I’ve lost as an adult, things that I care about, but the last thing I thought about doing was going to a judge that agrees with me and trying to have it forced on people who don’t agree with it.”
What you have to do is to do what those of us who have been in the minority for 40 years have done. You go out there and if you really believe in something you change people’s minds. You engage them on the issue. If you believe gay marriage is a fundamental right, then go out and convince people and let it happen in that process. It may take you some time. If it’s worth it it’s worth fighting for, but to have a bunch of courts and judges decide on the basis of their personal policy preference against the will of the people is undermining the fabric of the Constitution and the country. And it is the epitome of selfishness to see the courts in this role, to implement what you or I as an individual think ought to be the case, as opposed to letting the democratic process hash these things out. And any number of cultural issues are now in the hands of judges, and it is this decision in San Francisco, if it holds all the way up to the California Supreme Court, I guarantee you there will be a backlash.
This decision yesterday was the worst thing that could happen in the Democratic Party. You’ve got to learn to look at these things positively. You know, the Massachusetts Supreme Court had a role in electing George Bush. So did Gavin Newsom, the mayor of San Francisco. Now, this judge, and I don’t care that he’s a Republican Catholic, it’s not the point, this is not about ideology, it’s about the Constitution, it’s about with the foundational building blocks of the country but the political ramifications of this issue at this point in time in American culture, if this becomes the law of the land forced on people by judges you’re going to see one of the biggest wake-up calls the people of this country have ever had about the public clamor. You’re going to see a public clamor as a result of this like there was in the last election.” And it’s going to work to the detriment of the people who want this to become the law of the land, gay marriage or anything like it. There’s a way to do this and a way not to do it and the way not to do it is the way it’s being done.