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.
Yes
Buying child pornography?
The creation of child porography violates the right of the child, thus creation, purchase or posssession of such can legitimately be called crimes.
Is sex with 14-year-olds consensual in your book?
That really depends. I personally, would set the age limit for marriage and sex at 16, but I could see why such ages were lower in the past. With an age limit of 16, I would support laws forbidding persons over the age of 16 having sex with persons under the age of 16.
You see there was a Quaker woman, Mary Dyer:
In 1658, religious intolerance in Boston reached a horrible height, when a law was passed banishing Quakers under "pain of death." When Mary Dyer learned that two Quakers of her acquaintance were jailed in Boston, she went to visit them in 1659 - and was herself imprisoned (probably by design -- Dyer was very pro-active). That September, Mary Dyer and the two other Friends were released, after being assured that they would be executed if they returned. Nevertheless - only a few weeks later - an undaunted Mary Dyer, in the company of other Friends, returned to Boston resolved to "look the bloody laws in the face."Imprisoned once again, Mary Dyer saw her two fellow Quakers hung to the death. While herself bound and with the rope around her neck she received a last-minute reprieve (which was almost certainly prearranged). Against her wishes, Mary Dyer returned to Rhode Island; but soon came back to Boston - knowing the inevitability of her fate, but determined to give up her life in order to gain the "repeal of that wicked law".
On June 1, 1660, she was led once more to the scaffold and executed by hanging - refusing to repent, holding fast to her beliefs to the very end.
An argument could be made that it isn't those who are doing the reversing that are idiots. I think it likely that they know exactly what they're doing. It seems to me that the real idiots are those who know better and do nothing to challenge it, in effect, validating their efforts to nullify the Constitution.
Let me see - if they are private acts, and they aren't forced or coerced, and the participants are adults, then they are private. If they occurr in public, they are acts of indecency. Pretty easy.
For example, should mastabatory sex receive the same privacy protection and equal treatment for sentencing for public sex?
That doesn't even make sense. Not even close. Private masturbation vs public sex? Get real/
How about petting?
Where? In public, or private?
Multiple partners?
Multiple partners in public falls under the same category as any sex in public.
Does the gender of the participants matter?
Matter for what? Public acts? No.
How about non-blood familial relationships?
You mean sex between two people? Private? Public?
Are these all equal sex acts under the law, or only when distinguishing between hetero and homo?
There's one issue, and its not hetero vs homo. Its private versus public.
I had the very same thought when I used "idiots"- that they were actually only devious.
But I was so struck that anyone doesn't know- or conveniently forgets- that the Bill of Rights was demanded as a limit on the new government.
It was such an important demand that we probably wouldn't have had the Constitution without it. That fact must still be taught in elementary, junior, high school and college.
Only an idiot could not be aware of it's meaning.
Sadly, our schools are producing many of them.
The Constitution is a written document made of words that have meaning. What the Court has done is to "read" into those words meanings which cannot be supported by any competent construction of the document. When this is done as a general practice then none of us are safe from Judges who have decided to extend their ruling power further.
These issues, abortion and homosexuality, are issues for the body politic to decide, not elitist judges. Once set in Constitutional concrete there can be no changing these decisions and opponents have only two choices; amending the Constitution to remove these areas from the Court's power to decide or rebellion.
I hope that a significant number of people elect for amendment, civil war is a nasty habit to get into and we have already had one.
The founders thought we needed it. They found it so important to note the right to religious freedom that they prohibited Congress from making any law respecting an establishment of religion.
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?
You would have a difficult time arguing that the founders thought the act of sodomy is a God given right on par with the right to be Jewish. Of course, they also did not give the Federal gov't the power to act concerning sodomy, thus leaving it to the States to address this issue as they see fit.
P.S. I'm mighty glad the founders ratified the first amendment (and later, amendment 14, section 1), and didn't leave it soley to the minds of you or me or Supreme Court Justices to opine on our religious rights. Ah, the beauty of the rule of law over the rule of men.
If only legislating was so easy ...
Article 35.-SEX OFFENSES
Article 36.-CRIMES AFFECTING FAMILY RELATIONSHIPS AND CHILDREN
To see the legal definition of an offense and the prescribed punishment, click on the name of the offense. Note that common terms you may think you are familiar with have very different legal definitions in different states. For example, the definition of sodomy may or may not include oral sex, bestiality, or heterosexual activity depending on the state.
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.
Holy cow...I thought journalists were supposed to be able to read!
Scalia criticizes the other justices for "tak[ing] sides in the culture wars..." and then Bookman says "Scalia's side is losing"? Hey, pinhead, he's NOT TAKING SIDES!
"Telling language"? This is the sort of phrase weak writers use when they need to bridge uncooperative facts and quotes so they will lend credence to a pre-conceived conclusion, like when liberals accuse conservatives of using "code words" instead of admitting they are bigots.
Only in this man's dreams does the accurate Scalia quote in the first paragraph translate into the conclusion he draws in the following paragraph!
Had the Texas law applied to heterosexual sodomy (both oral and anal) as well as homosexual, it probably would have been upheld and this would be a moot discussin. As it was, it dealt only with homosexuals and it basically left a loophole, and SCOTUS jumped on it.
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