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.
I think the Constitution required a Constitutional amendment to end it, since the founders clearly knew about slavery when the document was written and still thought the document expressed their beliefs on individual liberty. I think the issue was recognizing slaves as full humans beings, not property. I think this "evolution of the zeitgeist" and understanding of human nature and liberty as applied to slaves needed to be resolved by an amendment, not judicial fiat - because the Constitution spoke ambiguously on the issue.
If it was the intention of the Federal government to federalize the issue, and dictate to states, then yes, it needed an amendment to justify the federal intervention, since the Constitution and the intention of its drafters was at best ambiguous, and at worst expressed tolerance for slavery.
The slavery analogy applies to the growing acceptance of sodomy as a state of human being, which the court has decided to resolve by fiat, rather than defering to the constitutionally-proscribed amendment process.
Let me add as a caveat that this is my own, non-Constitutional lawyer opinion. That said, an education in Consitutional Law does seem to always sharpen a person's wits much.
52%, and growing, of our population is on some form of government assistance. How long do you think we can survive on that trend before hitting "Galt's Gulch"?
Then the bloodbath will begin.
BUMP
Right to Privacy didn't have to enumerated according to the 9th. I have a right to discourage busy bodies, whether that be my neighbor or my local thug complete with gun and badge!
I'm not surprised many don't get this. Blackbird.
...And don't forget the cyanide-tipped payload...
Jay Bookman is the deputy editorial page editor for the AJC - which editorialized in FAVOR of campaign finance reform. Funny how the AJC can want to limit an ENUMERATED right - while getting after Scalia for trying to stick to only those enumerated rights. What a bunch of rank hypocrites.
The Constitution already enumerates the powers of the Federal Government, and prohibits it from infringing on citizens rights(e.g. 2nd Admd, gun rights), see how much good it has done.
This 'living document' nonsense will just let it grow beyond any new limits we try to impose. It has passed the point where the government recognizes the citizens as the sovereign, that is the problem.
As if self-inflicted diseases do not bleed the national treasury.
And Your complaint is?
So9
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."
The author deliberately misses the point here. Homosexuals never keep it in the privacy of the bedroom. They will tongue lash each other in the public mall, the theater, the steak house and at the PTA meeting. They already show their intentions in their gay pride parades. Is that kept in the bedroom?
Kids that don't even see their parents embrace are treated on the news to two hairy legged, bare butted men in black leather trying to shove their tongues down each other's throat, is that what the author calls private?
Amoung the rights and freedoms retained by the people, is the right to pass laws that ensure a healthy society, and acceptable sexual behaviour. It's is the right of society, made up of the individual citizen, to determine was is deviant behaviour and protect society from such behaviour.
The court has over stepped itself big time, and yes Scalia is scum. But the law over turned was proper and correct.
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