A word on originalism, courts and legislatures

I saw an interesting quote from Supreme Court Justice Scalia today:

The Constitution, though it has an effect superior to other laws, is in its nature the sort of “law” that is the business of the courts–an enactment that has a fixed meaning ascertainable through the usual devices familiar to those in the law.  If the Constitution were not that sort of a “law,” but a novel invitation to apply current societal values, what reason would there be to believe that the invitation was addressed to the courts rather than the legislature?  One simply cannot say, regarding that sort of novel enactment, that “[i]t is emphatically the province and duty of the judicial department” to determine its content.  Quite the contrary, the legislature would seem a much more appropriate expositor of social values, and its determination that a statute is compatible with the Constitution should, as in England, prevail.

Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cin.L.Rev. 849 (1989)

In other words, if we believe that the constitution is to be read according to how it was originally understood by those who consented to it, the people, whether a law is constitutional or not is strictly the province of the courts, of trained professionals in the law.   On the other hand, if it is a “living document,” then it should be the legislature that determines what it means.

Food for thought, eh?  In whose hands should the determination of constitutionality of a document be placed?  And in whose hands have we placed that decision to this day?


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