scalia

from George Will at National Review, A Jurist of Colossal Consequence:

Democracy’s drama derives from the tension between the natural rights of individuals and the constructed right of the majority to have its way. Natural rights are affirmed by the Declaration of Independence; majority rule, circumscribed and modulated, is constructed by the Constitution. But as the Goldwater Institute’s Timothy Sandefur argues, the Declaration is logically as well as chronologically prior to the Constitution. The latter enables majority rule. It is, however, the judiciary’s duty to prevent majorities from abridging natural rights. After all, it is for the securing of such rights, the Declaration declares, that “governments are instituted among men.”

Scalia’s death will enkindle a debate missing from this year’s presidential campaign, a debate discomfiting for some conservatives: Do they want a passive court that is deferential to legislative majorities and to presidents who claim untrammeled powers deriving from national majorities? Or do they want a court actively engaged in defending liberty’s borders against unjustified encroachments by majorities?

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