Posted on 06/30/2003 5:59:18 AM PDT by madprof98
In a recent public appearance, U.S. Supreme Court Justice Antonin Scalia, the man proposed by many to become our next chief justice, uttered words that ought to send a chill down the back of every liberty-loving American.
"The Constitution just sets minimums," Scalia told an audience at John Carroll University on March 18. "Most of the rights that you enjoy go way beyond what the Constitution requires."
Scalia is a Harvard-trained lawyer with a keen intellect and an excellent command of the language. It seems fair to assume that he meant exactly what he said.
He did not call into question a few of our rights, or some of our rights, but most of our rights.
And these rights -- or what we naive citizens wrongly presume to be our rights -- do not go slightly beyond constitutional requirements, but according to Scalia go "way beyond what the Constitution requires." In other words, most of the rights that you and I believe we enjoy under the protection of the U.S. Constitution could be greatly reduced under a Scalia-dominated Supreme Court, and he would never utter a peep of protest.
In those March remarks, Scalia did not identify particular rights he had in mind. But in his dissent to last week's 6-3 Supreme Court decision on gay rights, he got a little more specific. In essence, he wrote that Americans do not have a right to privacy. The long arm and peeping eye of government can extend even into our own bedrooms as far as he's concerned.
Fortunately, like Scalia, the Founding Fathers also respected the power of words. They too were precise in their use of language. And in the Ninth Amendment, they state explicitly that "the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people."
Among those "rights retained by the people," the right to privacy -- the right to be left alone -- is surely fundamental to the American understanding of the proper relationship between citizen and government. And if that right has any meaning whatsoever, surely it extends to consenting adults engaging in the most private of human activities, which is sex.
The majority of the court agreed with that conclusion. It threw out a Texas law that made gay sex a criminal matter, stating that "the Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual."
Scalia, of course, disagreed. He rejected the contention that there is a constitutional right to privacy. He wrote that disapproval of gay sex by the majority is enough to make it a legitimate state interest. The Texas law, he says, does not discriminate against gay Americans because "men and women, homosexual and heterosexual, are all subject to its prohibition of deviate sexual intercourse with someone of the same sex."
That's like saying you can pass a law against being Jewish because that law applies to everyone, Christian, Jew, Muslim, Hindu or atheist.
Like many of those who criticized the court's ruling, Scalia also claimed that "this effectively ends all morals legislation."
Which is nonsense.
Moral codes can and in fact must be legislated when the behavior in question harms another party. That harm makes the behavior a legitimate state interest. Child sexual abuse and child pornography, for example, clearly meet that test.
But what two consenting adults do in the privacy of their own home is not even a legitimate interest of their neighbors, much less of the state.
In his conclusion, Scalia accused the court of "tak[ing] sides in the culture wars, departing from its role of assuring, as a neutral observer, that the democratic rules of engagement are observed."
That's telling language. If we are indeed engaged in a culture war, Scalia's side is losing and he knows it. In his desperation, he and others wish to enlist the power of government as a weapon to repress a minority he despises.
But to paraphrase, that goes well beyond what the Constitution allows.
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Jay Bookman is the deputy editorial page editor. His column appears Thursdays and Mondays.
The AJC--like most major newspapers--provides almost ceaseless propaganda for one side of the culture war. (Bookman's piece, for example, is accompanied by an op-ed deploring Christian teaching against homosexuality because it makes young gay men feel bad.) I wonder why they fight so hard if they're so sure they're winning?
And he is right.
I think there should be a Right to Privacy, but the way to insure it is by ammending the Constitution, not by inventing a nonexistant right.
I think the only reason a Right to Privacy is not currently in the Constitution is that it was inconceivable to the founders that any Govt. would even consider infringing it.
So9
What is worse is that he actually sites the ninth amendment!
Seems like it would easily fall under those rights the 9th ammendment (the forgotten ammendment) says are retained by the people." The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.".
"The Constitution just sets minimums," Scalia told an audience at John Carroll University on March 18. "Most of the rights that you enjoy go way beyond what the Constitution requires." Scalia is a Harvard-trained lawyer with a keen intellect and an excellent command of the language. It seems fair to assume that he meant exactly what he said.
Of course he meant it. Unlike the author, Scalia’s apparently read the 9th Amendment:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
"Scalia, of course, disagreed. He rejected the contention that there is a constitutional right to privacy. "
And he is right.
Pardon me, but if the 4th amendment does not guarantee a right to privacy, what does it gurantee? Not that I agree with, support, or in anyway condone homosexuality, but the right to privacy in ones home is one of the fundamental tenants of the 4th amendment. As long as what one does in ones home does no harm to anyone else in society, their right to privacy should be protected.
The 4th limits and regulates the way the Govt. may gather evidence against you for a crime.
That is not a right of privacy, which would prohibit the Govt. from making any laws against things done in private, presumably limited to those between consenting adults.
So9
So what do you say the 9th means? Does it refer to rights of the people not actually specified in the constitution or to something else? Why wouldn't it be referring to a right to privacy of the people? Or does "people" refer to a collective right and not an individual right?
But that's just my opinion...
The 9th is a constraint on the federal government. It is not a constraint on the states via the 10th. An expansive joining of the 9th and 14th is a recipie for federal judicial activism like that seen in Roe v. Wade.
This enters the individual or collective right argument. Does "the people" here refer to individual (non negotioble) rights or to the collective right of the people, acting as the State, to controll the individual rights?
Scalia, of course, disagreed. He rejected the contention that there is a constitutional right to privacy. He wrote that disapproval of gay sex by the majority is enough to make it a legitimate state interest. The Texas law, he says, does not discriminate against gay Americans because "men and women, homosexual and heterosexual, are all subject to its prohibition of deviate sexual intercourse with someone of the same sex."That's like saying you can pass a law against being Jewish because that law applies to everyone, Christian, Jew, Muslim, Hindu or atheist.
The author is right. That was a stupid thing for Scalia to state.
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