The Paper of Record

The New York Times ran this priceless comment in an editorial:

The implications of Justice Scalia's remarks are sweeping. Many of the most central principles of American constitutional law - from the right to a court-appointed lawyer to the right to buy contraception - have emerged from the court's evolving sense of the meaning of constitutional clauses. Justice Scalia seems to be suggesting that many, or perhaps all, of these rights should exist only at the whim of legislatures.

So Scalia seems to suggest that these rights should only exist at the whim of legislatures.... I wonder if anyone can let me know if that is better or worse than these rights only existing at the whim of the judiciary?

I bet it depends on the makeup of the legislature and the judiciary. So, if the Supreme Court had five justices who wanted to eliminate, say, Miranda, would those rights be gone? If you think those rights are based on a clear reading of the Constitution, I think you need to do some re-reading.

And I know you're thinking, stare decisis will save those rights. Post-Casey, that claim looked pretty reasonable. Post Lawrence, not so much.