Richard Reeb expresses succinctly my gripe not only with George Will, but with "rule of law" Conservatives generally. As JP the Great repeated frequently, mere majoritarianism easily becomes tyranny if "the law" does not recognize anything higher than itself. Therefore, good as Scalia and many others are in our present circumstances (and no one enjoys reading a blistering Scalia dissent more than I), their attachment to the "rule of law" is insufficient, because it leaves them in the position of being mere legal positivists.
Scalia, for example, has publicly stated many times that he's bound by what the majority decides --if the majority decides it wants abortion, he would be bound as a judge to apply the law. That may seem innocuous to many, but the same argument could apply to a majority wishing to reinstate segregation --or slavery for that matter. I am reliably informed that Scalia recognizes the role of natural law in his capacity as a Catholic and a private citizen. . . .which, it turns out, is remarkably like the Cuomo position on abortion, no? "Personally opposed, but. . . ." Only in this case it's "personally in favor, but. . . ."
"The law" enshrined in our Constitution has to be subservient to the rights enshrined in the Declaration if it is to protect the rights of each citizen. That's the big piece of the puzzle that our loudest voices on the Right either don't understand or don't acknowledge. And I think it's a big part of the reason we tend to "Souter" or "Kennedy" ourselves. Attachment to "law" and "precedent" can only take you so far --and can even take you in a direction your allies could never have foreseen. See Reeb's post.
