'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.

[irish_links]

"...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]:.."

Tom:

You may be very attached to your semi-automatic rifle, but you do not have an unlimited constitutional right to own it. The courts consistently have upheld the notion that state, local and federal governments can limit the types of weapons that can be legally owned and the regulations governing such ownership.

As an extreme example, you can't own a nuclear bomb. I think we all agree with that. Nor can you possess sarin nervce gas, etc. This all seems reasonable and doesn't impringe on your right to own weapons for household defense, sport and the like.

Which brings us to your semi-automatic rifle. Apparently, you can't own one in California. This is draconian and obviously upsets you. But the California laws are generally far less strict than New York. In NYC, its pretty much illegal to possess a handgun. Yet, the gun control laws in NYC haven't been overturned.

Bottom line: the Constitution gives states and smaller government units like cities wide latitude in setting laws relating to the ownership of dangerous machines, objects, chemicals, nerve agents, etc. The states can't ban the ownership of arms entirely, but they do have the power to regulate them.

This is fine. Let one thousand flower bloom, as Chairman Mao said. Tyranny results when the federal government dictates to the states what behaviors they must or must not proscribe or permit. Such questions, like the right to private homosexual behavior, are rightly the sole purview of the states and the people.

[irish_links]

"...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...."

You can contend that, but you are wrong. The IXth and Xth Amendments were intended to protect the states and smaller political units from the tyranny of federal power. They were not intended to require states to grant residents then unknown rights that would later be dreamed up by federal judges.

As has been discussed numerous times, sodomy laws were common in all the original 13 states when the Constitution was drafted. If the Founders felt that such private conduct should be protected by the Constitution, they would have made it clear at the time.

If you want to read such a right into the Constitution, you must follow the "living document" school. That's fine. Lots of legal scholars like Al Gore do. But don't attribute such ideas to James Madison or to the others who contributed to the drafting of the Constitution. That's simply not historical fact.

[AEMILIUS PAULUS]

The right to privacy fraud! There is NO right to privacy. There ARE constitutional statements as to the requirements for governmental search and seizure.Note one thing, almost everytime some individual screams privacy he, she or it is seeking to cover some vice, fraud or violence. For years I have seen the "Right" in action. In every case the proponent of the "Right" was seeking to evade the exposure of one of his lies.Hell even the first proponent of the so called "Right" had a father convicted of judicial corruption.

[TheDon]

I worry about the spread of AIDs in our society. You may think only people who "deserve" to get AIDs are getting it, but that would be a rather ill informed thought.

You may only be able to worry about one thing at a time, the rest of us are a bit more capable.

[Cultural Jihad]

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.

As if to claim that AIDS in no way infringes on those "non-basic individual rights" of life, liberty, or the pursuit of happiness.

[justshutupandtakeit]

The framers did NOT write the amendments to the constitution those were added after their work.

So you accept the reasoning behind Roe v. Wade?

[tpaine]

Thanks, 'irish' .. -- I'll bookmark this one.

You have 'outed' yourself as a socialist/statist dupe, parroting the communitarian gun grabbing, prohibitionary line.

Do you really see yourself as some sort of conservative?

[irish_links]

"...Do you really see yourself as some sort of conservative?..."

Yes. Being a 2nd Amendment absolutest is not the sine qua non of being a conservative. Having respect for tradition and favoring an orderly, peaceful society are critical tropes of a conservative.

Bearing arms for sport and self defense are longstanding traditions of our culture and civilization and the right to do so is critical to the maintenance of an orderly, peaceful society. Nevertheless, the right is limited and each state is free to work out the details of the appropriate degree of constraint on the ownership and use of arms.

You may wish to live in a society in which the "state" imposes no limitations on personal behavior. If so, you are functionally a libertarian, not a conservative. Based on your postings, I would say that while neither of us is a socialist/statist dupe, only I am a conservative.

[tpaine]

Yep CJ, - "as if". You claim aids is infringing upon our rights - make your point.
Show us why its important enough to violate our constitutional principles.

I use 'our' loosely, as it is well established here at FR that your sense of principles are virtually non-existant.

[tpaine]

"Nevertheless, the right is limited and each state is free to work out the details of the appropriate degree of constraint on the ownership and use of arms."
-IL-

The peoples RKBA shall not be infringed, does not mean 'appropriate constraint on ownership/use'.

You deny that the plain words of our constitution mean what they say, in favor of governmental majority rule interpretations/regulations.
Such are the actions of a socialist, - one who favors state 'solutions' to social issues.

Call yourself a conservative if you must, but your own words belie you.

[irish_links]

"...The peoples RKBA shall not be infringed, does not mean 'appropriate constraint on ownership/use'..."

Do you believe the Constitution gives a man the right to own a nuclear weapon? If not, why not?

[skinkinthegrass]

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.

put out your match...Who said I subscribe, have not subscribed since 1974, when the queens @ the Lex. Leader absorbed the Hearld in 1974...since then read conservative papers, when one can find one...:|

[tpaine]

"Yes, I support the Second Amendment. And I make no bones about its purpose or to whom it applies. It was not put in place so Bill and Hillary Clinton could go duck hunting with a shotgun or so Barbara Steisand could carry a derringer in her purse to stave off overzealous fans. It's there because the founders wanted to ensure that we the people (ie, individuals) should remain armed to defend ourselves from a government gone bad. As far as I'm concerned, we should be allowed to park fully operational Sherman tanks in our garages and commute via fighter planes (if we wish). Now, personal nukes capable of taking out large cities.... hmmmm.... I don't know if I want to trust some of the crazier antiwar libs with those."
1,219 posted on 04/17/2003 5:04 PM PDT by Jim Robinson


I like the way JR put it above, a couple of months ago..
Most reasonable men can agree that regulations, even criminal laws on possession of WMD are constitutional, as even powerful governments cannot control the effects of their use.

However, fiat prohibitions on so called 'assault weapons' are not constitutional, and those who accept them are not 'conservatives' in the FR sense.

[irish_links]

"..However, fiat prohibitions on so called 'assault weapons' are not constitutional, and those who accept them are not 'conservatives' in the FR sense..."

If time permits, please tell me the legal reasoning supporting this conclusion. I have read some argue that the definition of an assault weapon in applicable legislation is vague and can be applied to a variety of weapons as a result. Is there more to it?

I ask this question because few if any 2nd Amendment absolutists seem to make a big issue of the ban on machine guns, but get all bent out of shape regarding assault rifles. Frankly, it seems to me that if one can constitutionally prohibit machine gun ownership it must also be constitutional to prohibit semi-automatic rifle ownership. What's the diff?

As an end note, being a conservative in the "FR" sense clearly is different than being a conservative in the "National Review" sense or the "American Spectator" sense. That's fine. There is room enough for everyone in the house, isn't there?

[tpaine]

"..However, fiat prohibitions on so called 'assault weapons' are not constitutional, and those who accept them are not 'conservatives' in the FR sense..."

If time permits, please tell me the legal reasoning supporting this conclusion.

Good lord, - you claim to be a conservative who supports 'reasonable' gun regulations, yet you have no legal knowlege of the prohibition issue, or of the silly 'assualt weapon' classification ? -- Sorry, I really dont believe you. You're a trolling phony, imo.

I have read some argue that the definition of an assault weapon in applicable legislation is vague and can be applied to a variety of weapons as a result. Is there more to it?

Educate yourself. I'd bet there are dozens of FR posts on the CA & Fed AWB's.

I ask this question because few if any 2nd Amendment absolutists

The 2nd is absolute in terms. "Shall not be infringed" is authoritive. Except to trolls.

seem to make a big issue of the ban on machine guns, but get all bent out of shape regarding assault rifles. Frankly, it seems to me that if one can constitutionally prohibit machine gun ownership it must also be constitutional to prohibit semi-automatic rifle ownership.

Yep, I can see why that makes perfect sense to you. - And to all the Mrs Brady types..

What's the diff?

You can't "constitutionally prohibit machine gun ownership". That's the 'diff'.

As an end note, being a conservative in the "FR" sense clearly is different than being a conservative in the "National Review" sense or the "American Spectator" sense. That's fine. There is room enough for everyone in the house, isn't there?

Sure, there is a real need on FR for self-admitted gungrabber socialistic punching bags..
Welcome..

[BlackbirdSST]

You can contend that, but you are wrong. The IXth and Xth Amendments were intended to protect the states and smaller political units from the tyranny of federal power. They were not intended to require states to grant residents then unknown rights that would later be dreamed up by federal judges.

I carry a Constitution in my pocket, every single day. I read the 9th, and frankly, I see no reference to the word State or smaller political units as you contend. I do see clear reference to ...retained by the people. One can argue, the sky is green and the grass is blue, but that hardly makes it so.

If you want to read such a right into the Constitution, you must follow the "living document" school.

I do not fall into the "living document" school, mine is a strict interpretation of the English Language. Where do you see the word "State" or "smaller political units" in the 9th? Who is trying to read something into this that is clearly not represented in the language? I will take the time, if you persist, to back up my view of the 9th Amd, you should do the same. No more conjecture, no more opinion, show me some discussion of the 9th Amd. to back your view, or drop it for lack of interest. Your call! Blackbird.

[irish_links]

"...No more conjecture, no more opinion, show me some discussion of the 9th Amd. to back your view, or drop it for lack of interest. Your call! Blackbird...."

I will grant that your interpretation of the IXth is in keeping with the court's modern view. Apparently, the penumbra of the IXth is where the court found the right to privacy in Griswold v. Connecticut.

Whether you choose to see it that way or not, this is a "living document" way of viewing the Constitution. It is not how Madison saw the issue.

According to a legal interpretation that I pulled at random from the web, Madison's view was as follows:

"It is clear from its text and from Madison's statement that the Amendment states but a rule of construction, making clear that a Bill of Rights might not by implication be taken to increase the powers of the national government in areas not enumerated, and that it does not contain within itself any guarantee of a right or a proscription of an infringement."

In other words, the IXth limits the power of the national government (read: federal) vis a vis the other relevant components of the body politic. And what would they be? Parmesian cheese? No, they would be by clear implication the states, counties, municipalities and the people.

You are free to find all kinds of rights hidden in the IXth that are not enumerated. Among other reasons, the Founders did insert the IXth in the BoR to make clear that the people have rights not expressly stated in the various Amendments. It is wrong, however, to assume that the Founders wanted the "national" governement to dictate what those rights are. With respect to criminal law, the state courts and the English Common Law were relied upon to work that out.

Sodomy was illegal in all thirteen original states. It was commonly proscribed under the common law. The Founders would never have dreamed that the Constitution somehow gave the national government the right to contravene state law and the Common Law in criminal matters such as these. The Constitution demands due process, not the recognition of every personal freedom that can be conceived.

[BlackbirdSST]

I'll get back to you this weekend. I'll be happy to provide you with more than one vague quote from the Internet! Blackbird.

[tpaine]

You are free to find all kinds of rights hidden in the IXth that are not enumerated.

Indeed we are, as that is its purpose. Why do you fight against this freedom?

Among other reasons, the Founders did insert the IXth in the BoR to make clear that the people have rights not expressly stated in the various Amendments. It is wrong, however, to assume that the Founders wanted the "national" governement to dictate what those rights are.

The USSC is not the "national" government.
Texas was 'dictating' unreasonable, unconstitutional law, - violations of which the court must strike down.

With respect to criminal law, the state courts and the English Common Law were relied upon to work that out.

Yep. - Under the supremacy of constitutional law.
See Art VI. States are bound thereby.

Sodomy was illegal in all thirteen original states. It was commonly proscribed under the common law. The Founders would never have dreamed that the Constitution somehow gave the national government the right to contravene state law and the Common Law in criminal matters such as these.

They never dreamed the states would attempt to invade their private lives & homes to do so, either. - Such acts cannot be decreed criminal and, -- they violate our constitution in their enforcement.

The Constitution demands due process, not the recognition of every personal freedom that can be conceived.

Yep, and due process must be used in the writing of such 'law'. Fiat prohibitions on victimless acts are not due process type law, they are "arbitrary impositions and purposeless restraints", as Justice Harlan recognized:

     "The full scope of the liberty guaranteed by the Due Process Clause `cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution.
This `liberty´ is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. 
It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints."

[Marysecretary]

You got that right, sweetliberty. Now they're crawling out of the woodwork! Argghhhhhhhhh!!!!!!!!!!!!!!!!