Roberts no "originalist"
I mentioned this in passing earlier, but this LA Times article elaborates:
WASHINGTON — Chief justice nominee John G. Roberts Jr. carefully avoided taking sides on many issues Wednesday, but he went out of his way at his Senate confirmation hearing to put some distance between himself and justices Antonin Scalia and Clarence Thomas — the Supreme Court's two staunchest conservatives.Well, thank god for small miracles.
...Scalia and Thomas proudly call themselves "originalists." They say the Constitution should be interpreted strictly, based on its literal words and its original history.
Like other conservatives, they shun the notion of a "living Constitution." They say their approach is faithful to the Constitution as it was written in 1787 and amended since then. Scalia says, only half-joking, that he believes in a "dead Constitution."
...Roberts pointedly said Wednesday that he disagreed with this narrow originalist approach and would apply the Constitution in light of today's concerns and understandings.
"I depart from some views of original intent," he told the Senate Judiciary Committee.
Words such as liberty or equality should not be given a "cramped or narrow construction," based on "just the conditions at the time" when the Constitution was written, he said.
"The framers chose broad terms, [with] a broad applicability, and they state a broad principle," he told Sen. Arlen Specter (R-Pa.), the committee's chairman.
..."It applies to modern times," he said. The Founding Fathers intended the Constitution "to apply to changing conditions. And I think that in that sense, it is alive … and applies down through the ages," Roberts said.
...his comments hint that he is at least open to a future decision saying the Constitution protects a right to die, or gives gays protection from discrimination.
The debate largely concerns a few words in the 14th Amendment, adopted in 1868, after the Civil War. It says states may not "deprive any person of life, liberty, or property, without due process of law; nor deny [them] the equal protection of the laws."
Roberts said these words, read literally, might mean only that the government may not arrest and hold someone without giving them due process of law. He said he believed the protection for liberty went well beyond that interpretation and included protections for fundamental rights.