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05/21/2014

Adam Lamparello & Charles MacLean: Two Liberals Pay Tribute to Antonin Scalia's Legacy
Michael Ramsey

Adam Lamparello (Indiana Tech Law School) and Charles E. MacLean (Indiana Tech Law School) have posted It's the People's Constitution, Stupid: Two Liberals Pay Tribute to Antonin Scalia's Legacy on SSRN.  Here is the abstract:

Living constitutionalism may achieve “good” results, but with each Roe v. Wade, and Bush v. Gore, the Constitution’s vision takes more shallow breaths, and democracy fades into elitism’s shadow.

The debate over constitutional interpretation is, in many ways, reducible to this question: if a particular outcome is desirable, and the Constitution’s text is silent or ambiguous, should the United States Supreme Court (or any court) disregard constitutional constraints to achieve that outcome? If the answer is yes, nine unelected judges have the power to choose outcomes that are desirable. If the answer is no, then the focus must be on ensuring political and democratic equality. The Court’s jurisprudence should promote equal participation in the democratic process — and equal protection of the laws — because it enhances personal autonomy and provides citizens — particularly disenfranchised groups — a meaningful voice in self-governance.

The authors present sixteen excerpts from Justice Scalia’s famous dissents and concurrences. Justice Scalia’s words embrace the democratic process — not the so-called living constitution — as a source for change. They argue that, within the Constitution’s written constraints, citizens in each state have the freedom to make laws and define unenumerated rights from the bottom up. Ironically, though, many seem to bristle at the idea of the people, not courts, defining “one’s own concept of existence . . . and the mystery of human life.” Why?