'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.

[GraniteStateConservative]

I am aware of the 13th Amendment, thank you. My point is that the Constitution with the Bill of Rights could easily be read to outlaw slavery (except as a punishment for crime whereof the party shall have been duly convicted). Just because the Founders were selective in applying the Constitution, it doesn't follow that they were right to do so-- or that it was proper. The nature of our form of government requires that the presumption is of liberty and not control by the state. The Founders wanted limited government and requiring a compelling interest by the state to act is the way to yield a limited government.

The Founders were aware of tyrannies of the majority and mob rule and opposed its development, and they declared that our rights to personal liberty were sacred and unalienable. They were also politicians and sometimes didn't do the right thing because of the desires of the majority.

[sweetliberty]

"Do you believe domestic terrorists (consenting adults, of course) should have a right to concoct deadly explosives in the privacy of their living room?"

I think it highly unlikely that the founding fathers could have conceived of such a thing as the terrorism we are faced with today. I think it is equally unlikely that they could have conceived the extremes to which certain elements of the population would someday go in an effort to subvert the Constitution AND the Scriptures. Keep in mind that in the time it was drafted, the people were constrained by moral absolutes which were never in question by male or female, slave or free, religious person or not. They were the defining boundaries of our Constitution and our public life. I believe that it was unthinkable to them that this nation would give rise to such a decadent and heretical people who would throw out common sense and decency in an effort to create a hedonistic and Godless society.

[nicollo]

I understand you were reviewing the constitutional methods, etc. I was pointing out that most reform law follows the fact.

[MEGoody]

"when it takes upteen millions of dollars to run for a simple state or federal congressional seat, then government is by the monied, for the monied, with favors returned to the monied"

Not that I don't agree, but I haven't figured out an acceptable alternative. Have you?

[sweetliberty]

"Why do heterosexuals have to shove their illicit activities in everyone's face all the time?"

You make a valid point, but then I would have to say that those who are adamantly opposed to widespread acceptance of homosexuality are also opposed to the EQUALLY deplorable display of heterosexual immorality. Just because the latter is already out of control, why should we add another evil to the mix?

[puroresu]

Nobody is perfect, including the Founders. They knew that themselves, which is why they included a provision to amend the Constitution within the Constitution itself. We decided slavery was wrong, and passed the 13th amendment. If laws against sodomy and abortion are wrong, then amend the Constitution. Don't pervert it by empowering judges to read things into it that aren't there.

If we're gonna do that, we may as well just bring the United Nations in to make our laws. They're "progressive" and modernist and fashionably "tolerant" of abortion, homosexuality, diversity, and the whole "liberal" agenda, right? I say the Constitution's general welfare clause should be "interpreted" as transferring sovereignty to the UN. We can't let those hick Taliban-type people in Nebraska pass their own laws. Why, they might ban partial birth abortion! I say it's better to bring in the UN to protect the "rights" of Nebraskans from being violated by their elected representatives.

Yes, I'm being sarcastic! :-)

I'm just trying to make the point that libertarian type conservatives are making a HUGE mistake in supporting rulings such as Roe and this week's sodomy decision. You're empowering a federal leviathan to combat a state law you don't like. That's a dangerous precedent. You're putting a wolf in the henhouse to protect the chickens from foxes.

[solomangrundy]

But the issue is, however, what is done in private. I don't advocate public indecency by anyone, straight or gay. I'm just as offended by extravagant displays of affection between gay people or straight people in public. But when two consenting adults love each other and want to express that love in the privacy of their home, I do not think it is anyone else's business, especially the government. And yes, I fully know that not every person's expression of sexual activity involves "love", but that goes for anyone, straight or gay, and I really don't want to know what is going on in my neighbor's bedroom.

Should law's punishing adultery or fornication be brought back? How about masturbation?

[sweetliberty]

See my post #19.

[aristeides]

I believe adultery laws remain on the books in many states. There is also an adultery count under the Uniform Code of Military Justice that I have actually seen applied to increase sentences. I wonder about their constitutionality under Lawrence.

[HurkinMcGurkin]

The case was returned to the courts. His conviction has not been overturned - and probably wont be. Its just his lengthy prison sentence. Notice that his conviction hinged on him being one day older than 18, not simply that he engaged in gay sex.

Like I said, no proof that any sex offender has been released from prison due to the SCOTUS decision. You simply made that up.

[justshutupandtakeit]

You don't understand what Scalia was saying. He was NOT saying we have no other rights than those in the BofR but that we have far MORE rights.

Naturally, a Leftist will lie and claim that Scalia is saying the only rights we have are those specified in the Constitution when he is saying THE OPPOSITE.

How did you miss this? You must know it is very dangerous to agree with a Leftie.

[Puddleglum]

"when it takes upteen millions of dollars to run for a simple state or federal congressional seat, then government is by the monied, for the monied, with favors returned to the monied"

Not that I don't agree, but I haven't figured out an acceptable alternative. Have you?

Well no, except a law that says no candidate can spend more than the median income of his/her constituents in any primary and general election; for presidential elections, they can double that, and exempt transportation costs.

Other than that, which is mostly just silly, I don't have much of a hunch. I wish I could think of a way to limit soft money ads, but they're just so darned legal, clearly.

[aristeides]

I will be very surprised if the Kansas court does not reduce Limon's sentence to something less than or equal to the time he has already served. That will mean, he will be immediately released.

[jmc813]

Why did you ping the mod?

[MEGoody]

"with the loudest voices, which are the liberals"

They are shrill, aren't they. LOL

[HurkinMcGurkin]

I will be very surprised if the Kansas court does not reduce Limon's sentence to something less than or equal to the time he has already served. That will mean, he will be immediately released.

If so, then he will still have served a longer sentence than he would have if he had performed the same act on a female. Clear equal protection problem. From link:

Had Mr. Limon performed oral sex on a 14-year-old girl, he could have received a prison sentence of about 15 months, and possibly just probation. Instead, he is now about three years into a 17-year sentence in the Ellsworth Correctional Facility. Under his sentence, he was also ordered to register as a sex offender upon his release.

Also, his case was obviously appealed to the SCOTUS in the first place. The poster's ridiculous comment indicates that States will just start opening up the jails and letting child molesters out. It hasn't happened, and wont. Any rational person knows this.

[sweetliberty]

"In one of the first consequences of its landmark ruling on gay rights on Thursday, the Supreme Court today set aside the lengthy prison sentence imposed on a gay Kansas teenager for having had sex with a younger boy."

Now while I agree that the sentence he was under was severe, that is not the point. The point is, there will likely be a rush on the courts, often at taxpayer expense I might add, to revisit or even overturn other convictions involving homosexual assaults. This is a real case that IS being revisited as a direct result of the ruling, so I did not make it up. I point it out as simply a foreshadowing of more outrageous actions that will inevitably follow. As I said before, this is only the beginning.

[justshutupandtakeit]

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

[MEGoody]

"EQUALLY deplorable display of heterosexual immorality."

I was at my nephew's wedding when a couple went on to the dance floor and began, well, simulating sex as a 'dance'. I calmly interrupted them and told them to go get a room for that - there were kids here. They looked at me dumbfounded and sat down.

Holding hands, a brief kiss - no problem. Public immodesty, public sexual contact - not acceptable.

[ffusco]

Our laws, as I understand them, protect privacy from Illegal search and siezure, as due process is required to search a persons home, car, person or belongings.

Our laws don't garauntee the rights to do any illegal activity in your home.