"Why can't the state accede to the public's wishes?"
About this Quote
There is a trap door hidden inside Scalia's seemingly plain question: it assumes you already know why the state sometimes must not give people what they want. Coming from a Supreme Court justice, the line reads less like curiosity than provocation, a dare aimed at the modern expectation that democratic desire should automatically translate into law. Scalia’s trademark move was to treat constitutional limits not as inconveniences but as the whole point of the project.
The specific intent is to force a confrontation between majoritarian politics and constitutional restraint. If the public wishes for something, why shouldn’t government comply? Because, in Scalia’s worldview, “the state” is not a wish-fulfillment machine; it is an actor bound by text, structure, and enumerated powers. The question pressures listeners to admit whether they want judges to be agents of popular will or guardians of a framework that can thwart it.
The subtext is a critique of judicial attitudes that smuggle policy outcomes into constitutional interpretation. Scalia is implicitly mocking the idea that legality should track opinion polls, or that courts should “update” rights and powers to match contemporary preferences. His skepticism is aimed both at legislatures tempted by populist shortcuts and at judges tempted to sanctify them with flexible readings.
Context matters: Scalia’s jurisprudence (originalism, textualism) was forged during decades when courts were accused, depending on the audience, of either blocking democratic reforms or inventing new rights. That tension animates the question. It’s not asking for permission to indulge the public. It’s asking whether the Constitution exists to restrain the state precisely when acceding would be easiest.
The specific intent is to force a confrontation between majoritarian politics and constitutional restraint. If the public wishes for something, why shouldn’t government comply? Because, in Scalia’s worldview, “the state” is not a wish-fulfillment machine; it is an actor bound by text, structure, and enumerated powers. The question pressures listeners to admit whether they want judges to be agents of popular will or guardians of a framework that can thwart it.
The subtext is a critique of judicial attitudes that smuggle policy outcomes into constitutional interpretation. Scalia is implicitly mocking the idea that legality should track opinion polls, or that courts should “update” rights and powers to match contemporary preferences. His skepticism is aimed both at legislatures tempted by populist shortcuts and at judges tempted to sanctify them with flexible readings.
Context matters: Scalia’s jurisprudence (originalism, textualism) was forged during decades when courts were accused, depending on the audience, of either blocking democratic reforms or inventing new rights. That tension animates the question. It’s not asking for permission to indulge the public. It’s asking whether the Constitution exists to restrain the state precisely when acceding would be easiest.
Quote Details
| Topic | Justice |
|---|---|
| Source | Help us find the source |
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