'Scalia Constitution' is scary

Atlanta Journal-Constitution ^ | 6/30/03 | Jay Bookman

[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.

[solomangrundy]

The enforcement of such "adultery" laws remains absent, though. I've read of a few divorce cases which attempted to invoke adultery laws but they've failed to pass judicial muster (they were thrown out). The military code is a different beast entirely. Attempts to make analogies between military and civilian codes are simply not possible.

[ffusco]

simulating sex as a 'dance'.

You mean like a tango?

[GraniteStateConservative]

So you want to turn our Constitution into one with millions of amendments?

Amendment 678: Eating of broccoli shall not be required at dinner time. [in response to the state of Oregon passing such a law]

It's ridiculous. The presumption is that we have personal liberty. That's what the Declaration of Independence, the Constitution, and our form of government presume. Without a compelling interest by the state, personal liberty is sacred and inalienable.

I'm not talking about abortion or marriage or child porn or anything else the state can show a compelling interest in regulating. The reason for the Texas law was "just because." That's it. There is no good reason for the government to get involved. Non-commercial sodomy by consenting adults of heterosexual or homosexual persuasion-- by itself-- is of no compelling interest of the state.

[RightWhale]

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

'believe we enjoy'? 'could be'? 'Scalia-dominated'?
Now who's playing with language?

[sweetliberty]

"The poster's ridiculous comment indicates that States will just start opening up the jails and letting child molesters out. It hasn't happened, and wont. Any rational person knows this."

That is not what I said at all. What I DID say, or at least the point I was trying to make, is that this legislation will be used as leverage to revisit cases in which inmates are already serving time for the commission of homosexual assaults. In light of the legislation, probably some, maybe many, will have their sentences commuted or even have their convictions overturned and will end up back on the streets. The fact that this particular case came up IMMEDIATELY following the ruling strongly suggests that a trend will follow, if history is any indicator of how these things go. Once the militant activist gains an inch, he immediately presses for the proverbial mile and the ACLU is always on hand to aid and abet the lowest common denominator. The result will be chaos in the courts and furthur erosion of the society in which we live.

[aristeides]

The fact that something is technically against the law can have other legal effects, even if the law against it is never enforced in practice. That was why homosexuals were so anxious to get sodomy laws (themselves almost never enforced) struck down.

[Clint N. Suhks]

That's like saying you can pass a law against being Jewish because that law applies to everyone, Christian, Jew, Muslim, Hindu or atheist.

What a moron.

[aristeides]

The fact that this particular case came up IMMEDIATELY following the ruling strongly suggests that a trend will follow, if history is any indicator of how these things go.

Yes indeed. It also shows that the Supreme Court was well aware of the molestation implication when it was writing the Lawrence opinions. Kennedy's assurance that Lawrence had nothing to do with sex with minors was thus disingenuous in the extreme. (What does that tell us about his other assurances, about gay marriage, prostitution, etc.?)

[HurkinMcGurkin]

What I DID say, or at least the point I was trying to make, is that this legislation will be used as leverage to revisit cases in which inmates are already serving time for the commission of homosexual assaults.

If they are serving more time than persons convicted of "heterosexual assaults", then what's the problem?

The fact that this particular case came up IMMEDIATELY following the ruling strongly suggests that a trend will follow, if history is any indicator of how these things go

Uh, it didn't immediately come up. The SCOTUS was ALREADY lookig at it. Good grief. Do you think a case is appealed to and accepted by the SCOTUS overnight?

[HurkinMcGurkin]

Oh, and for the record, here are your words again:

No sooner than it was handed down, homosexual sex offenders are released from prison,

Again, no sex offender has been released from prison due to the decision.

If some end up getting released because they were sentenced to lengthy sentences based soley upon the fact that the act was committed upon a person of the same sex, then that's what happens. Its an equal protection question.

[optimistically_conservative]

It's interesting that Lawrence and Garner, the defendants in Lawrence, have criminal histories.

Just to add detail to that point:

Men whose sodomy case led to Supreme Court ruling keep low profile
BY BRUCE NICHOLS
The Dallas Morning News

"They are not the kind of people that the lawyers want to comment on this case," Hill said. "They were never a couple. . . . They are not articulate."

It was neither man's first brush with the law when a Harris County sheriff's deputy, responding to a romantic rival's false report of a man with a gun, entered the apartment at the Colorado Club on Sept. 17, 1998, and found the men engaged in sex.

For Garner, Harris County court records list arrests for assault, drunken driving and possession of a small amount of marijuana. Department of Public Safety records show only two convictions for assault, in 1995 and 2000. Lawrence has two convictions for drunken driving and one for murder-by-automobile in 1967.

In 2000, the former roommate of Garner who called deputies to the apartment - and was later convicted of filing a false police report - went to court to obtain a protective order against Garner, accusing him of several beatings and a sexual assault.

Garner "punched me on my left eye two times" in January 2000, said Robert Royce Eubanks in an affidavit. Garner also beat Eubanks with a hose in 1999 while "using crack and drinking" and beat him with a belt in 1998, the affidavit said.

In May 1998, Garner "stabbed me on my right ring finger with a box cutter" and "grabbed a hot iron and burned me" and "then sexually assaulted me," Eubanks charged.

---

Date:	October 17, 2000
Subject:	Incident at 3942 Faulkner

A man assaulted in the 3900 block of Faulkner on October 10 has died from his injuries.

Robert Royce Eubanks, 42, suffered severe head wounds and was pronounced dead last Saturday (Oct. 14) at Memorial Hermann Hospital.

Eubanks had left a residence on Faulkner, where he had been visiting a friend, and was seen walking in the 3900 block of Faulkner. Someone from the residence on Faulkner contacted 911 and Eubanks was transported to the hospital.

There is no known motive or suspect in this case at this time.

Anyone with information in this incident is urged to contact the Houston Police Homicide Division at 713-308-3600 or Crime Stoppers at 713-222-TIPS.

The case was assigned to Officer L.D. Garretson of the HPD Homicide Division.

JFC 10-17-00
Inc #133701500

[sweetliberty]

"Without a compelling interest by the state, personal liberty is sacred and inalienable."

It seems the state has developed a "compelling interest" in increasingly more parts of our personal lives. Seems like there should be a clear definition of what constitutes a compelling interest. Obviously common sense, decency and good judgement are no longer a reliable basis for administering the law.

[aristeides]

I assume you realize that "compelling interest" is a technical term in the law, and that the Supreme Court very rarely recognizes a new one. Thus, it is very unlikely to agree with you that the instances you mention involve compelling interests.

[Tares]

Article: 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.

GraniteStateConservative: The author is right. That was a stupid thing for Scalia to state.

From reading Scalia's dissenting opinion, I gather Scalia would counter that a State cannot pass a law against being Jewish because the freedom of worship is an historically recognized fundamental right as evidenced by the First Amendment to the Constitution. There is no history of sodomy being a recognized right in the US. The history is that it has been outlawed for much of US history. That being the case, citizens of the several States are free to legislate on the issue of sodomy as they see fit, without interference from the Federal gov't. Because of the First Amendment, citizens of the several States are not free to legislate on religion as they see fit

If you haven't read either Justice Kennedy's majority opinion or Scalia's dissent (and the C. Thomas dissent as well), I recommend them. Best to get it straight from the horse's mouth.

[aristeides]

Garner had a history of assaulting Eubanks, most recently in January 2000. At some point later in 2000, Eubanks sought a protective court order against Garner, and the court granted a temporary one. However, it never issued a permanent one, because Eubanks couldn't be found. On Oct. 10, 2000, Eubanks was fatally assaulted by some person or persons unknown. All of this, I take it, within the city of Houston.

I wonder who committed the fatal assault on Eubanks. I wonder if the reason Eubanks couldn't be found for the court hearing was that he was already dead (or possibly just otherwise intimidated.) I wonder if Garner has an alibi for the time of the murder of Eubanks.

[Mark Bahner]

"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 wrong; he totally neglects the 9th amendment. He's just another pathetic judge who makes up The Law to suit his own pre-established opinions of right and wrong.

[GraniteStateConservative]

I'm talking about constitutional principles. You dispute that the Supreme Court believes that state governments have a valid interest in regulating child porn, marriages, or abortions?

[sweetliberty]

" Do you think a case is appealed to and accepted by the SCOTUS overnight?"

But the ACTION on it did come virtually overnight.

"No sooner than it was handed down, homosexual sex offenders are released from prison"

Okay, so far there is only one. I was using hyperbole, which you obviously failed to recognize, but I do not believe I am that far off the mark.

[aristeides]

I'm questioning whether the Supreme Court would find a compelling interest (the phrase you originally used.) And you need a compelling interest to trump a fundamental right.

[optimistically_conservative]

If some [sex offenders] end up getting released because they were sentenced to lengthy sentences based soley upon the fact that the act was committed upon a person of the same sex, then that's what happens. Its an equal protection question.

The SCOTUS has clearly put homosexual acts as equal under the law to heterosexual acts, to include experimentation among children/adolescents. The fact that a convicted homosexual sex offender must now be sentenced the same as a heterosexual sex offender, especially in a case where adolescent sex blurs the line between adult/minor and consent only provides clarity to the decision.

Right?