Scalia answered no “because your freedom is not absolute. Boarding a plane, a person can put hands all over your body. That’s a terrible intrusion but given the danger, the risk, it could be reasonable.” Ginsburg said, “An argument can be made certainly, but it’s not an argument either of us can answer. We don’t get questions in the form you pose them. We get a concrete case.”
We already know that Scalia is perfectly capable of riding roughshod over the plain language of the Constitution (Raich) when it collides with his own preferences, but this perfectly demonstrates the dark flaw at the heart of almost all judicial constitutional reasoning, to wit: The words of the Constitution cannot possibly mean what they say, because if they did, we would have to permit things we don’t like, or not permit things we do like.
In other words, there would be no room for us to interpose our own opinions as to “danger,” or “reasonableness” over those of the men who wrote our Founding Laws. And that would be intolerable.
Leftists call their process of Constitutional nullification “the living Constitution.” Rightists call it “reasonable, dangerous, or stare decisis.” The end result is the same: Judicial opinions are substituted over the plain language of the document.
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