'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.

[robertpaulsen]

One other thing. The Constitution of our Founding Fathers cited by the author did not include the 14th amendment (obviously) which applied much of the BOR to the states.

The U.S. Constitution was written to restrain the Federal government, not the states. The sodomy law was a state law, and our founding fathers would have ignored it.

[steve50]

The Constitution limits rights of government, it doesn't "grant" them to the people. It grants the government the right to legislate in very defined circumstances and clearly gives the means to expand the power of government to legislate only by Constitutional Amendment.

They've turned it on it's head. They wish us to believe that the only rights the people have are those expressly granted in the BOR and only under a changing(breathing) definition of Constitution, and that the power of government is unlimited.

We don't have more rights than the Constitution calls for. The people have more privileges than the Constitution allows the government to provide and the government has more authority than the Constitution allows.

[aristeides]

I largely agree with your posting. But I don't think you're right about the 14th Amendment not having the effect of banning slavery. The 13th Amendment was needed because the 13th came first, when the 14th Amendment was not yet even being considered. I think "nor shall any State deprive any person of life, liberty, or property without due process of law" would almost certainly be violated by a state's having a slave code.

[300winmag]

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.

[aristeides]

The Supreme Court could easily have issued a narrow ruling overturning the conviction of the defendants in Lawrence. They could have declared that using evidence found in that kind of house invasion for a sex prosecution violated the right to privacy contained within the right to due process, or something along those lines. They did not. Obviously, they took the case because they wanted to issue a much broader ruling and to overrule Bowers. If proof were needed, Limon shows it.

[sweetliberty]

Justices Void Prison Term Given Gay Teenager in Kansas

I'm sure this is just the beginning. As well as early releases for homosexual assaults, look for rulings to go light on related crimes committed BY homosexuals, combined with stiffer penalties for crimes AGAINST homosexuals.

[puroresu]

Well, I guess we'll never know since the 13th was the first of the three reconstruction amendments to go through. We do know, though, that it took a constitutional amendment to end slavery. And we do know that the 14th didn't expand voting rights to blacks, and it took the 15th to do that. So the 14th was not even remotely intended to grant federal courts the power that "liberals" today claim.

By the way, I've enjoyed your posts on this subject. You know your legal history!

[solomangrundy]

So you're saying you only want to read or see things you agree with, that anything that even remotely disagrees with you should be banned or deleted. Sounds rather cowardly to me.

[nicollo]

I've asked this question before, and no proponent of an expansive 9th amendment has been able to answer it. Why did it take a constitutional amendment (the 19th) to give women federally encforced voting rights? This was decades AFTER the 9th amendment was ratified. And decades AFTER the 14th amendment was ratified.

It didn't. As with the 17th, by the time the 19th amendment was ratified just about every State already allowed women suffrage. States that hadn't yet gone there were on the way. The 19th amendment was not needed for the cause.

We have precisely the same dynamic with Lawrence: the constitutional fiat comes long after the fight was already won.

What kind of world would it be if, say, Texas denied women the vote and abortion, and sodomy was outlawed? I submit it'd be a far better world: let New York be New York, and Texas be Texas. Instead, the impatience and sick righteousness of reformers requires their laws be imposed upon everybody. (That goes for all extremes of politics).

Btw, I'm glad to see this debate heading away from "privacy." In the Scotus ruling, the catch was sodomy. Privacy was the bait.

[solomangrundy]

Is there a constitutional right to not be offended?

How about nearly ANY of the "reality" shows on the Fox network ("How To Lie and Cheat To Marry a Millionaire", "Fornication Island", "Let's Commit Adultery in Primetime!", etc.). Why do heterosexuals have to shove their illicit activities in everyone's face all the time?

[TheDon]

"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.

[aristeides]

It's interesting that Lawrence and Garner, the defendants in Lawrence, have criminal histories. Garner has been guilty of several assaults, including a number against a homosexual lover (the one whose phone call to the cops led to the home invasion that led to the Lawrence case.)

[puroresu]

I know most states already gave women the vote by the time the 19th amendment was ratified. What I was asking was why, if the 9th & 14th amendments give federal courts the power now claimed, those courts didn't simply order the states to give women the vote in, let's say, 1871?

The reason is that the 9th & 14th amendments do not grant the federal courts the power to interfere with states on matters where the Constitution is silent (female voting prior to the 19th amendment, sodomy, etc.). The states can set their own laws, or a federal Constitutional amendment can be ratified to give the federal courts such power in a given area (19th & female suffrage).

[Sloth]

"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."

Sounds to me like the 9th Amendment.

[MissAmericanPie]

I agree with you, and my answer is to turn the channel. One can't turn the channel on the awful results of this unconstitutional ruling.

[GraniteStateConservative]

Just because the founders didn't apply the Constitution to all the people, it doesn't follow that that was the proper thing to do-- meaning SCOTUS today could properly apply it. Justice Curtis dissented ably in Scott v. Sanford and Justice Harlan in Plessy v. Ferguson-- both cases happened long after the deaths of the founders, but there is little doubt that Founders Era courts would have agreed with the majority in those cases, sadly. There's nothing to be ashamed of in suggesting that the Founders were imperfect in their application of a terrific document like the Constitution.

[sweetliberty]

Your post #60 is excellent. Too bad the courts aren't listening.

[GraniteStateConservative]

This law didn't prohibit by both sexes unprotected sex and the use of used needles-- the causes of most all STD cases.