'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.

[Tares]

Actually, Madison only agreed to a BOR to get some states to support the Constitution....There was by no means universal agreement.

But they settled on an agreement, the Constitution. The Bill of Rights was part of the agreement and includes (to this day) the power for states to legislate in areas not delegated to the Federal gov't (Amendment X). The Constitution does not delegate the power to legislate in the arena of sexual relations to the Federal gov't. Therefore, the states retain that power. But now the Supreme Court has abridged that power, contrary, I believe, to the clear original intent of the Constitution.

I doubt Madison and Washington thought the Constitution (with or without the Bill of Rights) could be read to allow US Supreme Court intrusion into this arena, but it now appears that an amendment giving the definition of marriage will be necessary to prevent the eventual Supreme Court ruling forcing all states to recognize gay marriage whether they want to or not. This should not be necessary.

[Theophilus]

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.

Homosexuals claim that they "want to be left alone" but their behavior belies such claims. They want to affront everyone who is less immoral than they because shock, insult and corruption is at the core of their perverse fantasies. Ask yourself: "How does one know what another's 'sexual orientation' is unless that person makes his 'sexual orientation' a public issue? How do we explain to our children what "gay" means without defiling their minds? Public sodomy is en route and we bigots must capitulate surrendering ourselves and our children to the filth in order to redress the inequities, repression and grievances of the past.

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.

I disagree, the 4th Amendment respected and enforced is all the privacy protection we need. Sodomy like consensual torture (what's the difference?) does not equal privacy. Sodomy does not warrent protection. It warrents prosecution. Privacy is not and was never the issue. Maybe we need to look at redefining "...probable cause, supported by Oath or affirmation" as a rational for officers violating the 4th amendment but we need no Right to Perversity.

[yankeedog]

It is my understanding that the raison d'etre of the Constitution of the United States is to set limits upon the powers of Government. Neither the Constitution nor the Government gives the people their rights. We are FREE. We have EVERY RIGHT; whether it is enumerated in the Bill of Rights or not. The original Constitution didn't have a Bill of Rights. There were alot of people who didn't see the necessity. Why should a free people have to make a list of their rights? There is not enough paper in the world. The Bill of Rights lists only what, at the time, was believed to be the most important. The Preamble to the Constitution does not mention giving rights to people. It amazes me that Freepers, of all people, are debating whether or not we have a right to privacy because it's not mentioned in the Constitution. Are we free? Or, not? Do we have the right to life and liberty? To the pursuit of happiness? To privacy? Personally,I think we should have another Constitutional Convention. Apparently, the meanng of the word "FREEDOM", has been lost. A new Constitutional Convention would reveal our modern government for what it has become: Brute power. </rant.

[templar]

The IXth protects the people from having rights taken away by the federal government, even though such rights were not expressly stated in the Constitution and the BoR.

Such as the right to privacy?

[Diplomat]

Problem is that the court did NOT rule that the search was unreasonable. If they had, there would be no issue here. What the court said was that Texas could not have a law on its books that made gay sodomy a crime. This is a far cry from declaring the police search to be unreasonable in the case at issue.

Thus they invalidated a Texas law for which they had no right to rule on to begin with. This is the same issue with Roe vs. Wade.

[GraniteStateConservative]

Could the state of Texas pass a law against overeating? Could it be reasonably argued that overeating is the cause of most heart disease cases and cardiac arrests?

Could Texas pass a constitutional law banning sexual relations between heterosexuals of different races?

[TheDon]

Yes. Yes. Yes. Of course, just because you can do something doesn't mean you should! Or that it would stand up to judicial scrutiny, let alone electoral scrutiny.

Your attempt to show equivalence between sodomy and overeating is a non-starter. Sodomy leads to AIDs transmission, I'm not aware of overeating leading to the transmission of anything to another person. Hence, there would be no societal, or state, interest in passing laws against overeating.

Your ban on interracial sexual relations is also a non-starter, as there is no state interest there either.

[tpaine]

Sacajaweau:
"Search and seizure is the control. Illegal activity in private is not a right."


That's the way the case should have gone down. But the USSC cherry-picked the case, and then a "sharply divided" court (to use a liberal phrase) said the real problem was the people of that state still had this dumb law on their books.The court then declared all similar laws across the country unconstitutional. They used the "privacy clause" (which must exist only in the shadows of the emanations of the penumbra of the Constitution) to void disagreeable (to them) state laws.
The danger comes from activist Supreme Courts (you need only five activists on the bench) from using this new tool again. Did the police find untaxed cigarettes in the privacy of your home? Void all state taxes on tobacco. Find an unregistered machinegun in the privacy of your home? Void the National Firearms Act.

Privacy of the home requires all laws that run afoul of it to be voided across the country.

Now I wouldn't mind having stupid tax and gun laws declared unconstitutional, but this new tool is just too dangerous to use. The Supreme Court has just announced that it can be bullied into finding new rights that please those with the loudest voices, which are the liberals. A hell of a way to run a railroad, or a court.
64 -300wm-



Granted, "Illegal activity in private is not a right." - Such activities are criminal, wherever practiced.

But you two fail to understand the issue.
-- Neither states nor feds have ever had the power to decree that victimless private activities are 'illegal'.
At long last the USSC has now admitted as much.

Thus, the mere possession of untaxed cigarettes or machine guns is not an unconstitutional act, and your claim that:

"Privacy of the home requires all laws that run afoul of it to be voided across the country."; --

-- makes no sense at all, to me. Can you explain further?

[DannyTN]

I agree that Scalia is right. There is no right to privacy that guarantees an abortion or to break the law in your home. However there is a right against unreasonable search and seizure which does keep the government out of the home.

Outlawing homosexual sex is only descriminatory if they are truly born that way. If it's a choice outlawing that behavior is outlawing a form of immorality and should be within the state's perogative.

[tpaine]

Yes. Yes. Yes. Of course, just because you can do something doesn't mean you should! Or that it would stand up to judicial scrutiny, let alone electoral scrutiny.

Your attempt to show equivalence between sodomy and overeating is a non-starter. Sodomy leads to AIDs transmission, I'm not aware of overeating leading to the transmission of anything to another person. Hence, there would be no societal, or state, interest in passing laws against overeating.

Your ban on interracial sexual relations is also a non-starter, as there is no state interest there either.
207 -don-


CA has found a compelling state interest to absolutely prohibit "assault weapons".
In your view this gives them the authority to infringe on our RKBA's?

[irish_links]

"...Such as the right to privacy?..."

If a state were to adopt a set of laws that effectively granted people under its jurisdiction an effective right of privacy (the right to engage in any behavior in private that did not do bodily harm to another or otherwise deprive an other of his property) the federal government should have no power to take that right away under the IXth and Xth Amendments. This would be limited, however, that any activity that came under a federal criminal statute would still be a federal crime, even though the state in question would not deem the activity criminal.

A good example of this is the California medical marijauna law. As I understand it, one can legally use marijuana in CA if you have a doctor's prescription. The problem is the doctor would commit a federal crime by prescribing it and the patient would commit a federal crime by following the prescribed therapy. So, the CA law is effectively nullified.

I disagree with the federal law and feel that states aught to be able to go their own ways on this and similar matters. The fact is, however, that Congress passed the bills that outlaw the practice (democracy in action!) and the executive branch (democratically elected) has said it will enforce it the federal law.

While frustrating in part, these are all aspects of a democratic process that I like, even though I don't agree with every outcome.

I'll take that form of government any time over a tyranny. What the SCOTUS has done in Lawrence v. Texas (not to mention Roe v. Wade, the Connecticutt birth control decision where the privacy penumbra was first discerned and numerous other cases) is to create a judicial tyranny.

Which relegates us who disagree with the court's decision to nullify federalism to the exercise of our democratic franchise by proposing and ratifying a constitutional amendment. It will entail a lot of work, but the result will be a more unified and energized conservative/federalist movement. The cowards and corner cutters in the GOP will be forced to take notice.

[irish_links]

"..Could the state of Texas pass a law against overeating? Could it be reasonably argued that overeating is the cause of most heart disease cases and cardiac arrests?.."

It would be very difficult to craft such a law in a manner that would permit it to pass muster on equal protection and due process bases. How much of a good thing is bad? If eating a 16 oz. steak is harmful to an 110 lb women, is it also harmful to a 210 lb NFL linebacker? Over eating isn't like drinking and driving. You can't administer a breathalyzer (sp?). But if you could, I would see no reason why a state could not pass such a law, although it would be political suicide to attempt it (except in CA where it is already a crime to be fat).

"...Could Texas pass a constitutional law banning sexual relations between heterosexuals of different races?..."

No. Such a law would quite clearly violate equal protection requirements. You would be creating a special class of people and discriminating against them. It wouldn't pass Constitutional review.

[skinkinthegrass]

The AJC--like most major newspapers--provides almost ceaseless propaganda for one side of the culture war...I wonder why they fight so hard if they're so sure they're winning?

Yes...It seems ANYTHING of an aberrant nature, the AJC champions...they like the Lexington Herald-Leader in Lexington, Ky. they provide Sport News and Coupons only...the rest is Liberal C*ap.

[kittymyrib]

And one wonders why so-called "conservatives" subscribe to or advertise in these toxic rags. By supporting them with your money, you make it possible for them to destroy our nation. YOU are culpable.

[TheDon]

Nope, the Second Ammendment trumps that! Thank goodness!

[Enough is ENOUGH]

I'm just curious. Does anybody know how many bedrooms during say the past ten years in Texas were broken into by LE and the occupants arrested for sodomy?

I haven't heard reference to any other cases.

[tpaine]

CA has found a compelling state interest to absolutely prohibit "assault weapons".

In your view this gives them the authority to infringe on our RKBA's?
210 -tpaine-


Nope, the Second Ammendment trumps that! Thank goodness!
215 -don-


Tell it to Irish_links. At #181 he says a state can deprive me of my 'assault weapon' property by merely using due process. [as long as they also have a compeling reason of course]:



"I believe the IXth is more limited. It prevents the federal government from taking away rights not expressly recognized in the Constitution and its Amendments.

It does not speak to what a state may do.

The Vth states that the state can deprive a man of life, liberty, or property, presuming it follows the due process of law.
Depriving a man of the liberty to engage in some sort of private sexual conduct would seem to fall under this provision."
181 -IL-

[TheDon]

The state deprives citizens of their right to life, liberty and property all the time, we refer to them as criminals.

As for sodomy, society, or the gov't, certainly can claim a reasonable interest in stopping the spread of AIDs as the sole reason for banning it. Besides, it's sick! ;)

[tpaine]

Yep, you worry about queers getting aids,-
-- while many other of our basic individual rights are being violated daily by fed/state/local governments gone out of control.

Weird priority, imo.

[BlackbirdSST]

You are not seriously contending that the Founders included the right to sodomy as one of those "rights?" Are you?

I'll contend that the Framer's of the Constitution wrote the 9th Amd. to ensure that everyone, especially the feddies understood, that just because a right wasn't listed, that didn't mean it didn't exist. I believe that I have an inherent right to privacy, as does every other Citizen of this Country. Read into that what you please. Some are obsessed with what other's do in the privacy of their own homes, some obviously, are not. Blackbird.