'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.

[HurkinMcGurkin]

Okay, so far there is only one. I was using hyperbole,

No one has been released from prison. The sentence is being reconsidered. The guy is STILL in prison. No use in continuing this when its apparent you wish to misrepresent the truth.

[Mark Bahner]

"Pardon me, but if the 4th amendment does not guarantee a right to privacy, what does it gurantee?"

It guarantees freedom from the (federal) government performing "unreasonable" searches and seizures.

[GraniteStateConservative]

A compelling interest in what specifically?

[aristeides]

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

Obviously, the Supreme Court had been aware of the Limon case for months (and was aware of it when it wrote the assurance in Lawrence about the case not being about sex with minors.)

[Sabertooth]

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.?)

I posted this yesterday, but I'll toss it on the fire here.

From Kennedy's majority opinion in Lawrence...

In Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992), the Court reaffirmed the substantive force of the liberty protected by the Due Process Clause. The Casey decision again confirmed that our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. Id. , at 851. In explaining the respect the Constitution demands for the autonomy of the person in making these choices, we stated as follows:

" These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State." Ibid.

Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do. The decision in Bowers would deny them this right.

< -snip- >

Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled.

In Lawrence, the SCOTUS has held that Bowers denied to persons in homosexual relationships the Constitutional protection of their autonomy for the purposes of making "personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education."

In Lawrence, the SCOTUS has further held that "the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life," is "at the heart of liberty," and in overruling Bowers has affirmed that this right may be excercised in the pursuit of homosexual self-definitions on an equal footing with that of hererosexuals. It's difficult to imagine that a right held to be "at the heart of liberty" could be held to be anything other than a fundamental right. The autonomy to make personal decisions regarding marriage has been explicitly encompassed in the overruling of Bowers by Lawrence.

Lawrence sets the table advantageously for the swiftest endgame possible for advocates of same-sex marriage.

[mrsmith]

"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." "

The lying liberal pretends the Ninth doesn't apply ONLY to the federal government.

Madison was very proud to have found a way of keeping the feds from claiming that they had the power to regulate any rights that were not exempted in the Bill of Rights.

The Ninth amendment is a proscription against the federal Court doing just what it did in Lawrence: abridging unenumerated rights!

How are these idiots so successful at reversing the meanings of our Constitution?

[aristeides]

A compelling interest in what specifically?

It was you who asserted the courts would find compelling interests. I think the burden is on you to name them.

[GraniteStateConservative]

So in your mind, we needed the first amendment or else states could outlaw Jews? You don't believe you can read a right to be Jewish just out of the rights to personal liberty we are given by God-- noted by our founders?

[HurkinMcGurkin]

The SCOTUS has clearly put homosexual acts as equal under the law to heterosexual acts, to include experimentation among children/adolescents.

No, the SCOTUS has not. IF any homo who had sex with a minor gets out of prison it will be because the State in question had different sentences for the sames act depending on whether members of the same sex were involved. Its the stupidity of the moralists in those States. If its such a huge crime for an adult to have sex with a person under 18, then make it a crime, with the same sentence, for EVERYONE.

The fact that a convicted homosexual sex offender must now be sentenced the same as a heterosexual sex offender..

Makes both heteros and homos equal under the law.

[GraniteStateConservative]

You want me to name compelling interests in the state regulating child porn, marriage contracts, and abortion?

[D Rider]

I just got here an know I should read through everything first, but...

The right to privacy was "found" to exist in 1965. We went 170 years or there abouts without it. And the right to privacy was "found" in the context of marriage only. This, of course, was expanded in 1973, and now seems to have been expanded here in 2003.

But the real question is, "How in the world did we fight and win two world wars without this fundamental right? How did our parents and grandparents get along without it?"

[optimistically_conservative]

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.

Yes, it does make one wonder, doesn't it?

[aristeides]

Its an equal protection question.

Except that the Supreme Court instructed the Kansas court to reconsider in light of Lawrence, and the majority in Lawrence expressly declined to decide the equal protection issue.

[rhema]

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.

Here's where Bookman's whistling Dixie. One right is stated explicitly; the other "right" is purely invented, an "emanation" emerging from the labyrinthine depth of the SCOTUS legislator-wannabes' "privacy penumbra." If Bookman had any intellectual honesty, he'd make the distinction.

[HurkinMcGurkin]

Except that the Supreme Court instructed the Kansas court to reconsider in light of Lawrence, and the majority in Lawrence expressly declined to decide the equal protection issue.

Then in light of Lawrence, the Kansas court can look at it, and not change anything. Let the SCOTUS rule on Limon as well. They will have to address equal protection(don't get me wrong, I think SCOTUS should have relied on EP in Lawrence, although I agree that a State should not be able to make a law concerning consensual activities on private property).

[Clint N. Suhks]

Will you be one of the first to volunteer the installation of a government-monitored camera in your bedroom?

Listen Mr. Straw Man, does that camera go next to the incest camera or the are you smoking pot camera which would be next to are you beating you wife camera next to the lame argument homosexual propaganda camera?

[aristeides]

I agree that a State should not be able to make a law concerning consensual activities on private property

All drugs, including heroin? Buying child pornography?

Is sex with 14-year-olds consensual in your book?

[aristeides]

My understanding, by the way, is that the crime in Limon occurred in a state institution for the mentally disabled. I wouldn't consider that private property.

[optimistically_conservative]

No, the SCOTUS has not.

Yes, it has. You can not argue equal protection for homo/hetero then state that wasn't the result of the SCOTUS decision to send the case back to Kansas for reconsideration. It clearly was.

The question now is what other forms of sexual behavior is also treated with the same equal protection and right to privacy?

For example, should mastabatory sex receive the same privacy protection and equal treatment for sentencing for public sex? How about petting? Multiple partners? Does the gender of the participants matter? How about non-blood familial relationships? Are these all equal sex acts under the law, or only when distinguishing between hetero and homo?

[sweetliberty]

"The guy is STILL in prison. No use in continuing this when its apparent you wish to misrepresent the truth."

I was not misrepresenting anything. Given the following, I thought he had been released:

"Justices Void Prison Term"

"...Supreme Court today set aside the lengthy prison sentence

So he hasn't officially been released YET. It doesn't change the validity of my point.