'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.

[puroresu]

EXACTLY! It's the left that is bringing UNELECTED branches of government into the culture wars to impose their agenda on the populace. Sodomy & abortion are two examples.

The gay marriage issue is another. The left can't get gay marriage enacted at the ballot box, so they ask judges to "interpret" non-germane constitutional provisions ratified decades ago as "mandating" it. When we object, and talk about amending the Constitution to protect traditional marriage, they accuse us of using government as a tool in the cultural war.

Scalia would allow both sides in the wars over abortion, sodomy, school prayer, and many other issues to fight it out in the legislative arena. He isn't taking sides. The six judges who handed down the sodomy ruling were.

In fact, we can at least be thankful that on occasion Kennedy & O'Connor show a little restraint. If it were up to Breyer, Ginzburg, Stevens, and Souter, EVERY policy debate in the culture war would be decided by judicial fiat in favor of "liberals". Want to force the Boy Scouts to admit gays? You've got it! Want taxpayer financed abortions? The court so orders! And on and on....

[Cultural Jihad]

Why did you ping the mod?

We'll be sure to ask the permission of the anarchist censors before speaking to anyone you don't personally approve of. (sheesh)

[jmc813]

?

[Cultural Jihad]

I think the real point is that a small limited federal government has no power to intrude in private matters.

500,000 needless deaths is not a 'private matter.'

[jmc813]

500,000 needless deaths is not a 'private matter.'

Would you like to see cigarette smoking banned?

[Cultural Jihad]

Would you like to see cigarette smoking banned?

One cigarette never killed anyone. The same cannot be said for one act of homosexual sodomy.

[berserker]

The point is, there will likely be a rush on the courts, often at taxpayer expense I might add, to revisit or even overturn other convictions involving homosexual assaults. [post 97]

I would think not, given that the Lawerence case involved making consensual same-sex activity illegal. Sexual assaults are still criminal, no matter what the gender combinations are.

[irish_links]

"..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..."

True only if the SCOTUS would not have granted certiorari if equal protection issue was not in question. As it was, O'Conner's opinion that Texas law denied equal protection was not the point of law that the court ruled on. Her argument was nothing but an interesting side show. The court used the privacy penumbra to reach the decision and didn't address the equal protection question in (Kennedy's) opinion for the majority.

[jmc813]

Fair enough. Interesting reasoning.

[Cultural Jihad]

Why did you ping the mod?

Apparently the self-avowed ideologues can't mind their own business, and are busy sticking their noses into other people's.

[Burkeman1]

Really? I wonder if one legislator who passed the 14th thought it touched on sodomy laws or abortion. But never mind- we have "judges" to tell us what the law means "now". Might as well consult goat entrails or John Edwards in the future.

[sweetliberty]

Semantics. In the Kansas case, the fact that one of the boys was 14 makes it sexual assault whether it was "consensual" or not. It involved one adult and one child, technically, and yet it is being reconsidered based on the the Supreme Court ruling.

[jmc813]

Apparently the self-avowed ideologues can't mind their own business, and are busy sticking their noses into other people's.

OK. I just didn't see how that was much worse than comments I see on FR everyday. That's all.

[CyberCowboy777]

It is a state matter, not a federal matter.

[Puddleglum]

If the federal government is small and limited in scope of duty no right to privacy is needed.

Also, we need to remember that the Constitution was drafted to get states to ratify a formula for unified government. States wanted the assurance that the FedGov would not be a tyrant before they signed on. The Ninth is a trump card against the FedGov, not against the states.

After reading Federalist 84, my understanding is that the Bill of Rights lists those rights so essential that some states would not ratify the Constitution until assured of the FedGov's explicit limitation in those areas.

[rwfromkansas]

Alright, look, the 9th amendment just indicates that natural rights, which were believed by our founders, exist regardless of whether they are in the Constitution or not.

I do not believe any of you can find evidence that a right to privacy to the contorted extent the SCOTUS makes it is in any way or form a natural right. If you think you can, give it a shot.

If it is not, it is not a right the founders would have supported.

[CyberCowboy777]

Not unlike the laws prohibiting incest.

Both a state matter.

[rwfromkansas]

Actually, Madison only agreed to a BOR to get some states to support the Constitution.

Also, many founders argued that the Constitution contained enough on the religious matter and the First Amendment was not needed. I have read some comments by Washington for one that indicates he thought the Constitution did enough to protect the rights of people in regards to faith. There was by no means universal agreement.

[rwfromkansas]

Wow. Adultery is illegal in KS? Interesting.

[CyberCowboy777]

exactly

The concept of rights and limitations has been contorted with the advancement of federal government powers. This is nothing more than another attempt to steal power from the citizens of a state and place it in the hands of the Federal courts and legislators.

The idea that 6 of 9 justices do not understand this is cause for great concern for all Liberty lovers.