'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.

--------------------------------------------------------------------------------
Jay Bookman is the deputy editorial page editor. His column appears Thursdays and Mondays.

[irish_links]

"....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...."

You've staked out an "extreme" libertarian position here. The rational continuum that you speak of leads directly to legalized drug use, prostitution, gambling, suicide, polygamy, incest, beastiality, adultery, any private consensual behavior.

Believe me. I am not fundamentally opposed to a body of laws that does not criminalize personal private behavior that does no third party bodily harm nor deprives them of their property.

You recognize, however, that this is not a widely held position in this country. Most people in America favor laws that limit personal behavior relating specifically to sex, drugs, suicide, child porn, et al. They hold this view because they think that the foregoing activities are damaging to our society, its children and to important civic institutions like marriage and the family. Whether you like it or not, this view is equally valid to your own.

You would not achieve the changes in the law that you seek through typical democratic means. You would have to ram these changes down the throats of most Americans through the arbitrary actions of an imperious Supreme Court.

I'm not against personal liberty. I'm just for Federalism. Let Texas be Texas and California be California. There is no one size-fits-all set of moral laws (or lack of them) that will satisfy everyone. Therefore, let every state work out the issues in its own way, subject to judicial review by a SCOTUS that strictly abides by the plain meaning of the Constitution and the written intentions of the Founders, not the mutable political/cultural biases of its sitting members.

[irish_links]

"...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...."

I'll write this passage off to fatigue or carelessness. As has been repeated ad infinitum, sodomy was illegal in all thirteen original states. It would never have occured to the Founders not to criminalize the act. They were concerned about how these (and any) laws are enforced, but not that such laws exist.

Your statement regarding enforcement is negated by the facts of Lawrence v. Texas itself. Lawrence made no claim that due process was not followed by law enforcement. LE was investigating a claim that it had no reason to doubt and validly entered Lawrence's home in the process. While in the home they witnessed the commission of a crime under Texas law. They arrested Lawrence on suspicion of committing a crime. Where is the fundamental problem other than the fact that you believe that the act committed shouldn't be a crime?

[tpaine]

Most people in America favor laws that limit personal behavior relating specifically to sex, drugs, suicide, child porn, et al. They hold this view because they think that the foregoing activities are damaging to our society, its children and to important civic institutions like marriage and the family.

You admit that:

"I am not fundamentally opposed to a body of laws that does not criminalize personal private behavior that does no third party bodily harm nor deprives them of their property."

- I am also fundamentaly opposed, as is our constitution.
Thus, what "most people favor" are laws that violate this fundamental principle of our constitution.

Whether you like it or not, this view is equally valid to your own.

You are contradicting your own statement just above.
What these people "think" are damaging acts must be shown to be valid dangers. There has to be a compelling state interest proven, or due process is violated in the drafting of the law, and it becomes an 'arbitrary imposition and purposeless restraint'; -- a decree by majority rule.

[irish_links]

"...What these people "think" are damaging acts must be shown to be valid dangers. There has to be a compelling state interest proven, or due process is violated in the drafting of the law, and it becomes an 'arbitrary imposition and purposeless restraint'; -- a decree by majority rule...."

You have reached the root of the libertarian vs. conservative conflict on matters of law and society. Conservatives (and I consider myself one) have great respect for tradition. If something has been considered a danger to society since the dawn of Western Civilization -- polygamy, incest, canibalism, homosexuality -- conservatives generally conclude that there must be something to the taboo. They give credance to the "ick" factor, as Jonah Goldberg describes it. The "ick" factor is about all we need to identify a compelling state interest to prohibit a practice.

That doesn't mean that you have to be "pro-sodomy laws" to be a conservative. I'm not. But most conservatives are want to override the decisions that communities make about the moral standards they want to uphold in their communities.

Most libertarians (with the exception of the Lew Rockwell gang), on the other hand, don't put much value on tradition. They value personal freedom above all, and demand that the state meet a very strict test to any law that limits personal freedom when the exercise thereof doesn't harm a third party or deprive him of property.

Great. I don't support sodomy laws, but I support the people of the State of Texas if they want one.

I don't support drug laws, but I support the right of the people of the 50 states to have them.

I support free speach, but I recognize the right of the people of many communities to limit free speach as it relates to pornography and literature that incites violence.

There is nothing contradictory about these statements. I may disagree with the laws of some states, but I do not believe they are unconstitutional. If I wish them to be changed, I recognize that they should be changed through political action, not judicial fiat.

Which leads us to the Supreme Court. I want a Supreme Court that recognizes the rights of the states and the people to go their own ways on these issues, to work them out through political means. I think that's what the Founders intended. They recognized that the groups with unpopular habits would be made uncomfortable from time to time, and the Bill of Rights is intended to protect them. But it does not grant cart blanche license. No historical examination of the Founders would suggest as much. I question whether you could provide quotations from Tom Paine himself (considered a dangerous loose cannon by the Founders) that would support such a conclusion.

You obviously disagree with my reading of con law. That's great. I respect your views. But, I have to say your arguments supporting your views are not compelling to me. They are not compelling because they seem to read a libertarian interpretation into the thoughts and actions of the Founders without any evidence to support it.

[tpaine]

Where is the fundamental problem other than the fact that you believe that the act committed shouldn't be a crime?
242 -Irish-


The fundamental constitutional problem is ALWAYS what should be an individual right, and what should be 'illegal'.

Clearly; life, liberty and property are individual rights.

Clearly; those who violate individual rights, partially listed above, can be found by a jury to be criminals.

Clearly those who write/enforce 'laws' that violate those same rights, can be judged to be criminals.

Clearly, the latter is not being done, which jeopardizes the rule of law in our free republic.

We are long overdue to insist upon compliance to the principles of our rule of constitutional law on scofflaw politicians & their enablers, imo.

Throwing the Rinocrat bums out of office would be a good start.

[tpaine]

Heres the 'ick' factor in ~your~ views as I see them.

You claim to support our constitutional principles, -- BUT, -- you want to let majorities rule in the states.

You say:

"There is nothing contradictory about these statements. I may disagree with the laws of some states, but I do not believe they are unconstitutional. If I wish them to be changed, I recognize that they should be changed through political action, not judicial fiat."


The BASIC principles of our constitution cannot be materially 'changed', even by amendment. Violating human rights voids the social contract of our union.
- IE, - if our RKBA's is basically violated, I, and millions of others will rebel, as is our self-evident right, [even our duty].


Another of the basic principles you ignore is Art IV, Sec 4, - wherein every state is guaranteed a republican form of government.

A republic needs more than the majority rule "ick" factor to
"identify a compelling state interest to prohibit a practice", dispite what your hero Jonah bleats.

[irish_links]

"...You claim to support our constitutional principles, -- BUT, -- you want to let majorities rule in the states...."

I am on record on this endless string as being in favor of SCOTUS judicial review of state laws. All I want is for the SCOTUS to apply a strict constructionist approach to their constitutional review. They aren't appointed to make legislation, they are appointed to interpret the law and the Constitution.

What I don't want is for them to impose their personal views on the entire country by overturning any and all state laws that don't conform to their prejudices.

In your world, what philosophy would you have the court follow when trying to determine the constitutionality of a state law? On one hand, you interpret the 2nd Amendment in the broadest and most liberal manner possible: citizens should be able to own Abrahms tanks and stock pile hand grenades in case the Blue Helmets and Black Helicopters invade. On the other hand, you take a completely a-literalist approach when seeking to discover a right of privacy in the Constitution. Which is it? literalist or living document? You can't have it both ways; you can't just pick and choose.

I'm not at all clear about your points relating to a republic. A republic is according to the Oxford English Dictionary "a state in which the supreme power rests in the people and their elected representatives or officers, as opposed to one governed by a king or similar ruler; a commonwealth." I don't see anything intrinsic to such a polity that negates majoritarianism fundamentally or necessitates a rejection of laws that are based not entirely on reason, but rather long standing tradition and cultural taboo (i.e. the "ick" Factor).

For 220 years laws based primarily on long standing traditions and the Common Law have been considered constitutional in America, even when they limited private sexual conduct. Suddenly, they are not. I think it is up to the libertarians and their allies the liberals to explain why this is so and to explain how the reasoning applied by Kennedy in Lawrence doesn't tear down any defense communities have against gay marriage, gambling, private drug use, unassisted suicide, organ sales, escort services delivering the goods at home and all the rest.

Justice Kennedy informs us that all right thinking people in New York, Washington, LA, Amsterdam and Berlin have gotten way past their hang ups about homosexuality, and therefore Texas's sodomy law is unconstitutional. Pardon me if I find this less than a compelling legal argument. Have you a better one?

[tpaine]

"...You claim to support our constitutional principles, -- BUT, -- you want to let majorities rule in the states...."

I am on record on this endless string as being in favor of SCOTUS judicial review of state laws. All I want is for the SCOTUS to apply a strict constructionist approach to their constitutional review. They aren't appointed to make legislation, they are appointed to interpret the law and the Constitution.

Thats what they did in Laurence. You insist they "legislated".
Thus, you are dancing with the truth, 'endlessly'..

What I don't want is for them to impose their personal views on the entire country by overturning any and all state laws that don't conform to their prejudices.

Endless hype,
They aren't. Dance on.

In your world, what philosophy would you have the court follow when trying to determine the constitutionality of a state law?

The clear philosophy of ALL of our founding documents. -- That individual rights to life liberty, and property are self-evident.

< On one hand, you interpret the 2nd Amendment in the broadest and most liberal manner possible: citizens should be able to own Abrahms tanks and stock pile hand grenades in case the Blue Helmets and Black Helicopters invade. On the other hand, you take a completely a-literalist approach when seeking to discover a right of privacy in the Constitution. Which is it? literalist or living document? You can't have it both ways; you can't just pick and choose.

Straw man, 'irish' .
I see a literal right to privacy in life/liberty/property.
My private life under the liberty of the rule of constitutional law should be unquestioned on my private property, unless I violate anothers individuals rights.

I'm not at all clear about your points relating to a republic.

Bull. You're dancing again.

A republic is according to the Oxford English Dictionary "a state in which the supreme power rests in the people and their elected representatives or officers, as opposed to one governed by a king or similar ruler; a commonwealth." I don't see anything intrinsic to such a polity that negates majoritarianism fundamentally or necessitates a rejection of laws that are based not entirely on reason, but rather long standing tradition and cultural taboo (i.e. the "ick" Factor).

'Icky' dancing kiddo. We have a ~constiutional~ republic, as you well know, which 'negates' your fancy footwork on definitions.

For 220 years laws based primarily on long standing traditions and the Common Law have been considered constitutional in America, even when they limited private sexual conduct. Suddenly, they are not. I think it is up to the libertarians and their allies the liberals to explain why this is so and to explain how the reasoning applied by Kennedy in Lawrence doesn't tear down any defense communities have against gay marriage, gambling, private drug use, unassisted suicide, organ sales, escort services delivering the goods at home and all the rest. Justice Kennedy informs us that all right thinking people in New York, Washington, LA, Amsterdam and Berlin have gotten way past their hang ups about homosexuality, and therefore Texas's sodomy law is unconstitutional. Pardon me if I find this less than a compelling legal argument. Have you a better one?

Educate yourself. You think it is up to the libertarians and the buggaboo 'liberals' to explain why this is so.
It isn't. Use your own reasoning and your own arguments to convince FR as to your points.

Otherwise, you're just another whiner.

[Luis Gonzalez]

"The state has a great interest in stopping the spread of AIDs via sodomy."

If that were the case, then why did Texas decriminalize sodomy for 97% of the State's population?

Or, taking it further than that, and as we know that AIDS can be spread through any sexual contact, why not enact laws against fornication?

[spunkets]

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

It guarantees nothing. The 4th just qualifies and places a limit on how that right can be infringed. The right, however does not protect what might be done in private from any legislation. Else you could conspire against pizza parlors, shopping centers and busses, build bombs and make poison gas in your private mosque and the govm't could do nothing about it. Especially since passing a law agaist doing that would demean the reputations of the devout in a holy place.

[TheDon]

The primary, by far, method for transmission of the AIDs virus is male on male sodomy. Next is....IV drug users.

Texas reasons for criminalizing sodomy has nothing whatsoever to do with the fact that Texans have an interest in preventing the spread of AIDs by criminalizing sodomy. So you can put down that straw man argument.

[Luis Gonzalez]

"Texas reasons for criminalizing sodomy"

Oh really?

Before 1973, Texas law criminalized sodomy for all its citizens, the law was overturned and replaced with one that only banned homosexual sodomy, thus effectively decriminalizing sodomy for the vast majority of the State's citizens.

In light of thet, how is it exactly that you see Texas as looking to "criminalize" sodomy?

[tpaine]

GraniteStateConservative:
"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."



I completely disagree. The state has a {great} interest in stopping the spread of AIDs via sodomy.
73 -Don-



That was then, - this is now.
-tpaine-


Texas reasons for criminalizing sodomy has nothing whatsoever to do with the fact that Texans have an {-GREAT-} interest in preventing the spread of AIDs by criminalizing sodomy.
So you can put down that straw man argument.
-Don-

[TheDon]

Perhaps you misunderstood my point. Independently of the reason Texas passed their law against sodomy, they have an interest in preventing the transmission of AIDs by passing laws against sodomy.

[TheDon]

As you don't mention the point of your post, I'm left to guess that you misunderstood what I was trying to say to the poster. Don't feel bad, the poster misunderstood what I was trying to say as well! Check my reply to him to see if it clarifies my point.

[tpaine]

This is the point. You're just blowing wind about aids for effect:

GraniteStateConservative:
"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."

[TheDon]

I'll take your attack as conceding my point.

"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."

If a person is engaging in behavior that is spreading the AIDs virus, you would be foolish to not be interested.

[TheDon]

Seems you've learned the liberal debating tactics well. Perhaps you'd be happier on DU?

[tpaine]

You are using DU 'debating' tactics in asking that question.
Get a grip & get some real arguments.