Leave a Comment Jacob Combs
Justice Scalia finds it “absolutely easy” to decide abortion, gay rights cases
October 5, 2012
Community/Meta Marriage equality Supreme Court
By Jacob Combs
Without meaning to, I’ve ended up writing several of my posts this week about the Supreme Court and marriage equality, not because the Court has made any significant news on the issue, but because it is so likely to do so in the near future. Today’s installment comes, via the AP’s Mark Sherman, from Antonin Scalia, who spoke this week at an event in Washington to promote his new book and said that his ‘textualist’ philosophy of interpreting the Constitution makes deciding the most contentious issues the Court contends with some of the easiest to resolve. From the AP:
“The death penalty? Give me a break. It’s easy. Abortion? Absolutely easy. Nobody ever thought the Constitution prevented restrictions on abortion. Homosexual sodomy? Come on. For 200 years, it was criminal in every state,” Scalia said at the American Enterprise Institute.
He contrasted his style of interpretation with that of a colleague who tries to be true to the values of the Constitution as he applies them to a changing world. This imaginary justice goes home for dinner and tells his wife what a wonderful day he had, Scalia said.
This imaginary justice, Scalia continued, announces that it turns out “‘the Constitution means exactly what I think it ought to mean.’ No kidding.”
When faced with words like these, it’s difficult to know how to begin responding to them, even setting aside the incredible callousness of Justice Scalia’s addressing the death penalty with the words “give me a break” or the fact that he still sees fit to use the term ‘homosexual sodomy’ in the year 2012.
But, of course, the most significant implication of Justice Scalia’s comments is what it means for his jurisprudence, and how it reveals a judicial and constitutional worldview that is at best small-minded and disingenuously convenient and at worst reveals a surprisingly naive understanding of what the founders most likely meant the Constitution to represent.
On the surface, Justice Scalia’s judicial reasoning seems to exhibit a certain pat logical tidiness but, as his opinions demonstrate, his reliance on his own standard of review is spotty at best. The Constitution says nothing on the issue of abortion rights? That means that all restrictions on abortions are perfectly fine. The Constitution says nothing about whether corporations have a free speech right to spend money in electoral contests? That means corporations should be allowed to spend whatever they like. In my reading, Justice Scalia’s supposed philosophy means that he should have voted against the Citizens United decision. If the Constitution is silent on corporations’ right to free electoral ‘speech,’ that means the founders didn’t think they should have any.
In reality, though, this argument is an example of missing the forest for the trees. Unlike Justice Scalia, I hesitate to claim that I know what the founders of our country intended when they wrote the Constitution, either in terms of the actual words contained in the document or the motivating principle behind it. Still, I have my suspicions, and I think it’s worth pointing out that the most significant (and most fundamental) flaw with Antonin Scalia’s philosophy is that the Constitution is not meant to be specifically a governing document, but rather a guiding document for the people to use as they govern themselves.
What I mean by that distinction is that the founders (I believe) did not intend for the primary function of the U.S. Constitution to be a source for any final say on a matter of policy or law. Instead, they intended it to provide a framework for the primary institutions and broad procedures through which the American people would design and implement their own government. For instance, most people do not know that the only court explicitly required by the Constitution is the Supreme Court. The rest are left up to the Congress to implement as it sees fit. This doesn’t mean the founders thought that the United States should only have one court; on the contrary, it shows that they knew the needs of the people and the government would grow and shift over time, and that the people themselves would be best equipped to respond to those changes.
This last point gives the lie to Scalia’s supposed reasoning that a judge need only do an index search in the Constitution to resolve complex legal issues. The Constitution doesn’t say that gays and lesbians should be allowed to marry because that wasn’t a question in the 18th century. Similarly, it doesn’t say that women should be allowed to vote, since that wasn’t a question either.
No one expects Justice Scalia to vote to strike down Prop 8, or even DOMA, for that matter. But his remarks this week show just how shallow and simplistic his fundamental legal reasoning is. It’s remarkable that one of the most powerful judges in our country views the law not as something living that changes with American society, but as something set into stone in the 1780s. If that were true, we wouldn’t need judges. Thank goodness, then, that it is not.
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50 Comments Leave a Comment
1.
Rick | October 5, 2012 at 8:21 am
Unbelievable! By Scalia's logic we'd still have slavery, and Justice Thomas would be in jail for marrying his wife of a different race. Oh, the hypocrisy!
2.
Nick | October 5, 2012 at 8:22 am
And you all think this court is gong to rule in our favor!! I doubt it.
3.
davep | October 5, 2012 at 8:42 am
The Constitution doesn't saying anything about airplane travel either. Should all the jobs in the airline industry and at the FAA be deemed "illegal" because they are not specifically described and "allowed" in the Constitution?
This argument, based on looking for specific current court cases in the Constitution, has shown up in all sorts of cheap rhetoric about all sorts of issues and is has NEVER stood up to the slightest bit of rational scrutiny. Scalia should be embarrassed for trying it.
The Constitution DOES have things like the Due Process Clause and the Equal Protection Clause, which have implications that affect a wide variety of legal issues. Like much of the document, they help create an overall framework which seeks to protect the rights of individuals and groups of individuals from unjust legislation or unjust majority rule. They do this with wording that obviates any need to look for specific references to individual pending cases within the Constitution.
4.
Sagesse | October 5, 2012 at 8:47 am
I'm in the middle of reading the Time magazine book The Constitution: The Essential User's Guide. It's not long, and it describes the tensions and the negotiations that went into it. I highly recommend it… I recommend it to Justice Scalia, too, but we all know what will come of that.
5.
Matt L-S | October 5, 2012 at 9:02 am
Well, we wouldn't have slavery because there's an amendment specifically banning it.
6.
Reformed | October 5, 2012 at 9:18 am
Justice Scalia, what can we determine from the text of the constitution with regard to the constitutionality of syncopated rhythms and sensual triplets. More importantly, what does it say about "SS" as opposed to "HS".
7.
Sagesse | October 5, 2012 at 9:22 am
Scalia and Thomas are only two votes, so mathematically, yes they may.
8.
Straight Ally #3008 | October 5, 2012 at 9:31 am
I don't know what Scott Brown was thinking when he cited Scalia as his idea of an ideal Supreme Court justice.
9.
Str8Grandmother | October 5, 2012 at 9:48 am
Very good article Jacob, well written and informative. I tell you what we better re-elect Obama as Ruth Badder Ginsburg might leave the Court within the next 4 years, and for that matter Kennedy is pretty old isn't he? I hate Scalia I really do he is such a smart ass. And Thomas is a lightweight.
10.
fiona64 | October 5, 2012 at 10:01 am
But strict constitutionalists maintain that pretty much anything s/p the US Civil War (e.g., women's suffrage and the 14th Amendment) is not part of the "original intent." Of course it's ridiculous, but that's part of their argument.
11.
Jim | October 5, 2012 at 10:21 am
As Str8Grandmother mentioned voting is so important, in every election, not just a presidential election. Not voting in every election is the reason we have people like Scalia and Thomas on the Supreme Court. Just remembering what Scalia thinks about you, is reason enough to vote in every election. For those LGBT folks that think voting is not important, or that it doesn't effect (or is affect) them, SHAME on them. It does effect them, as well as all of us.
12.
nightshayde | October 5, 2012 at 10:21 am
If his mind is made up before cases are presented, WHY EVEN BOTHER PRESENTING CASES? Isn't the judiciary there to hear both sides of an argument & then decide on the merits presented? If Scalia is prepared to rule on issues without hearing both sides of an argument, doesn't that show that he's not fit to be a justice?
*headdesk*
13.
Matt N | October 5, 2012 at 10:28 am
"This imaginary justice goes home for dinner and tells his wife what a wonderful day he had, Scalia said."
As opposed to Scalia going home for dinner and telling his wife what a crappy day he had, because he's bound by his idiotic interpretation of the constitution that constrains the court to an idealized 1780s America.
14.
Drpatrick1 | October 5, 2012 at 11:02 am
I think, Jacob, you are allowing your passion to overrule your intelligence. Scalia is bad, he proved himself a hypocrite in the Citizens United decision. However, you misunderstand his argument, and thus weaken your own. The constitution, as amended, allows women's suffrage. He doesn't argue that abortion is illegal because the framers didn't like it, he argues that because the framers did not write that abortion should be protected, it is up to congress to write laws protecting or limiting access to abortion. If you don't like what congress is doing, elect different people, or change the constitution to the way you want it. Thus, he argues that the constitution gives the people through their representatives in congress (in the end, we are a republic and not a democracy), the right to create laws and to change them, and even the constitution, as we see fit. He argues that while the laws can change with each new congress, the constitution's meaning does not change unless amended. He argues that it is an extraordinary step for the judiciary to overrule the people, as viewed by the vote of their reps, and we must only do so when it is clear that the law as applied in the case does not conform to the constitution.
Where I differ with Scalia is how he interprets the 14th amendment (among other issues). If we take him at face value, then he reads the amendment only to apply to people affected by slavery, that is to say AA's in this country. However, a modern understanding is that, as the words themselves state, it applies to all people. I believe it grants all people, not just blacks, equal protection. In ruling on this, the judiciary has outlined 4 different standards of review, and as precedent is supposed to mean something, this grants a process for reviewing cases in this light.
The bottom line is Scalia is wrong to take such a simplified approach, requiring the constitution to be amended with the times. This process is purposely difficult. Taken in Scalia's view, the constitution should be easier to amend, he even says as much.
We must work hard to prevent the next Scalia from joining the bench. We must reelect Obama!
15.
Exx-man | October 5, 2012 at 11:23 am
Voting, and voting intelligently is not only a right. It is a responsibility. We owe it to ourselves and our fellow citizens.
16.
Glenn I | October 5, 2012 at 11:44 am
exactly this, maybe?
17.
Glenn I | October 5, 2012 at 11:50 am
Scalia, as you note in your post, Mr Combs, does not believe the very words he spouts. He is a hypocrite, but then you can't be a conservative and not be a hypocrite; it's definitional. A principled, consistent conservative is like a sinless Christian; neither exists. That doesn't prevent conservatives (or Christians) from being big bossy assholes. But maybe that's definitional, too.
18.
STM60 | October 5, 2012 at 1:17 pm
Good analysis and I agree with you. I think that Scalia is too often attacked more for the actual votes than for his thought process. I tend to think his line of reasoning, for example will support the Prop 8 case and would support a reasoning that the federal government should not over rule states in the area of marriage. Don't laugh. He may surprise us with his votes.
19.
echamberlain | October 5, 2012 at 1:18 pm
Scalia, does the First Amendment apply to religions invented after the ratification of the First Amendment.
20.
Paul | October 5, 2012 at 1:37 pm
How can a textualist like Scalia rest on an argument that if the constitution does not expressly include a potentially protected right, that right is not constitutional? Has he not read the 9th Amendment?
21.
Rick | October 5, 2012 at 1:53 pm
It almost seems like he would need to recuse himself. And, he would never make it on to a regular jury since his mind is already made up.
22.
Rick | October 5, 2012 at 1:56 pm
Like Mormonism!
23.
Paul | October 5, 2012 at 2:14 pm
I read that it is "forbidden" for justices or their clerks to discuss any case before the court with the press or the public. He's done this before and recused himself from that case. Is that what's going on? Is that what we should want to happen? Can we help it along?
24.
Mike in Baltimore | October 5, 2012 at 2:15 pm
Please re-read the Constitution. It only bans the importation of slaves, but not slavery itself, after the year 1801.
And the Constitution itself spells out the procedures for amending the Constitution. Therefore, the 13th Amendment (passed in conformance with one of the methods listed in the Constitution) was totally Constitutional.
BTW – You do realize that cotton, thus slavery, was on a very serious downward slope until the cotton gin was invented by Eli Whitney?
25.
Mike in Baltimore | October 5, 2012 at 2:31 pm
"If you don't like what congress is doing, elect different people, or change the constitution to the way you want it."
By amending the Constitution, we are changing the meaning of how it was written. Therefore Scalia would, with his 'originalist' mentality, ignore it, as it was not how the Constitution was written.
Yes, we need to make sure President Obama is reelected so when Scalia leaves the court for whatever reason (hopefully within the next 2-3 years), we can help make sure another Scalia is appointed to the court. And also we need to make sure the Senate also is in Democrat's hands, since it is the Senate that is required to affirm the President's appointment by a majority vote. Otherwise, we'd have such 'characters' as Bork or Harriet Miers sitting on the bench.
26.
Reformed | October 5, 2012 at 3:18 pm
is there a specific case before THE court or are relevant cases just being considered for cert? and does it matter?
27.
LISA | October 5, 2012 at 3:20 pm
BINGO!!
28.
Paul | October 5, 2012 at 3:53 pm
OK, I get it. I guess since my husband expects me not to have sex with anyone else after we're married…I can have sex with 6 or so whores on the eve of our wedding and he shouldn't mind at all. That's sure in keeping with the spirit of the law…don't you agree?
29.
Str8Grandmother | October 5, 2012 at 4:29 pm
Well telephones and computers werw not around when the Constitution was ratified, should Scalia reject all cases before the Supreme Court that relate to the FCC or The public owning Radio airspace? No the Constitution is a living document in place to make us a more "perfect" union. What Scalia advoctes is raw majority rule. Where then are the rights of the minority who will never have the numeric number to vote to protect themselves? This is why we have Rational Basis Review, Intermediate and Heightened scrutiny. We are building our case law case by case. I'll go with that 14th Amendment any day of the week Scalia.
30.
AEvans | October 5, 2012 at 4:46 pm
"Homosexual sodomy? Come on. For 200 years, it was criminal in every state"
Well, for 200 years it was also illegal for a white man to marry a black woman. We haven't let that stop us have we? So why should the past 200 years define what we do NOW with the legality of homosexuals?
31.
Mike in Baltimore | October 5, 2012 at 5:30 pm
The end of the first sentence of the third paragraph should read:
"we can help make sure another Scalia is NOT appointed to the court."
One word can make a huge difference.
32.
If Mittens wins | October 5, 2012 at 5:39 pm
Sounds like Mitt, "I can assure you, gay marriage is not in the constitution"
33.
Mike in Baltimore | October 5, 2012 at 5:42 pm
If Scalia and ilk believe the Constitution is the absolute end all and be all for legal decisions and that we absolutely have to read the Constitution as it was written in 1787 with no changes, then why did the writers include a method (actually several) for amending the document? Isn't that a clear indication that they recognized that as times change, the need to change the Constitution might also change?
I'm still waiting for any of the 'original, strict, constructionists' to respond, let alone provide a response, let alone a cogent and logical response, to those questions.
34.
Straight Supporter | October 5, 2012 at 6:50 pm
The founding fathers are long dead. Why are we still so obsessed with how THEY thought this country should be? No offense is intended. No offense is intended. But if some of the founding fathers felt it was okay to have slaves, it should be okay for us also, right?
35.
gunther1234 | October 6, 2012 at 5:47 am
Homosexual Sodomy, do you suppose he feels the same about heterosexual sodomy? I suppose it might have been illegal for 200 years. And this man has the power to decide what the law really is?
36.
Bill S. | October 6, 2012 at 6:29 am
However, I find it ridiculous that Scalia is completely ignoring the 9th Amendment. Just because a right is not spelled out directly in the Constitution does not mean that it does not exist.
The original intent of the 14th Amendment is to prohibit any sort of government-sanctioned caste system, whereby one class of people are legally instituted as superior over another. As we have learned more about the nature of human sexuality, we have learned that this is precisely what we're doing. The judge in the Pederson case explains beautifully how "original intent" and gay rights do not at all conflict.
37.
Bill S. | October 6, 2012 at 6:33 am
"By amending the Constitution, we are changing the meaning of how it was written. Therefore Scalia would, with his 'originalist' mentality, ignore it, as it was not how the Constitution was written."
Not that I am a fan of Scalia, but this is not at all true. The original Constitution states that amendments are "valid to all Intents and Purposes, as part of this Constitution." Therefore, the original intent of the Constitution is that all amendments are to be considered as 100% valid parts of the Constitution on equal footing with any other section.
38.
Bill S. | October 6, 2012 at 6:35 am
But then people would argue that any change in the Constitution *must* come from an explicit amendment, not judicial interpretation.
39.
Str8Grandmother | October 6, 2012 at 9:05 am
Soon another Monday. At 9:30 Eastern time every Monday since Sept 24 I am checking at SCOTUS to see if they are going to grant cert or not. It's hard the waiting.
40.
Mike in Baltimore | October 6, 2012 at 9:56 am
And Scalia (since he is an 'originalist') goes with the ORIGINAL wording of the Constitution, not any later interpretations of it, which an amendment would be.
Except for when he can use the 1st Amendment to scream religious discrimination, I'm sure the only Amendment he would consider valid would be the 2nd. (Remember, it was added within 3 years after the Constitution was originally written.) After all, the only thing that Amendments do is change the ORIGINAL wording, or add to the ORIGINAL wording, of the Constitution, therefore changing the ORIGINAL meaning of the Constitution.
41.
John | October 6, 2012 at 9:59 am
This Monday is a holiday. So it wouldn't be announced until Tuesday.
42.
Mike in Baltimore | October 6, 2012 at 10:01 am
The 9th Amendment is an amendment (aka CHANGE) to the Constitution, therefore it changes the ORIGINAL wording and/or meaning of the Constitution. And since it is now no longer the ORIGINAL wording and/or meaning of the Constitution, Fat Tony feels he can ignore it. After all, as an 'originalist', he feels he only has to observe the ORIGINAL wording of the Constitution.
43.
Seth from Maryland | October 6, 2012 at 1:40 pm
i thought if it was on a holiday, it would annouced on that thursday of the week
44.
Lymis | October 6, 2012 at 2:22 pm
Saying that homosexual sodomy was illegal all that time is slick of him, but isn't true, not in the sense he means it.
Because heterosexual sodomy was just as illegal for all of that time, too, until states either repealed the laws for everyone, or else repealed the law and replaced it with a specific new law that only applied to gay people (or at least to people having same-sex sodomy.)
Singling out gay people in this way is a new and very recent phenomenon. (Whether enforcement of it was ever applied equally in the past is a separate question entirely.)
This is just further proof that he doesn't think we're people, must less citizens. That alone should disqualify him from being a Justice.
45.
Deeelaaach | October 6, 2012 at 6:01 pm
Mitt forgets that heterosexual marriage is not in the Constitution either.
46.
Dan | October 6, 2012 at 6:30 pm
Any first year law student would know that the Constitution is not a guide and it is the Supreme law of the land. Would Free Speech or Due Process just be a guide that can be circumvented by the executive or state governmental? I think not, the Constitution establishes principles that are applicable at anytime (if they are not or are inadequate then there is the amendment process).
Scalia's analysis is not to find the intent of the drafters, but rather look at the words and attempts to understand their plain meaning in the context of the era. It is impossible to look at the intent of the the hundreds of draftsmen and that is one reason why Scalia, as opposed to Breyer and Ginsburg, rejects legislative history when it contradicts with the plain meaning of the law.
Poor article with no grasp of the fundamental principles that our country was founded upon. Completely missed the relevant issues
47.
Dan | October 6, 2012 at 6:40 pm
How does the airline industry be deemed illegal? Just because the Constitution does not mention an industry under what provision does an industry become illegal, that makes no sense and has no basis. The Constitution allocates the power of the federal government and is a limiting document where the Bill of Rights protects state or individual rights from the federal government.
48.
Mike in Baltimore | October 6, 2012 at 7:25 pm
Dan,
You're thinking in a rational and logical manner. That is NOT how Fat Tony thinks.
Flying is NOT mentioned in the Constitution, so how could the airline industry be legal?
Of course, Fat Tony is constantly a pot of contradictions:
Driving an automobile is not mentioned in the Constitution, so how could it be legal?
Turning on an electric light is not mentioned in the Constitution, so how could it be legal?
Marriage is not mentioned in the Constitution, so how could it be legal?
Allowing women to be in politics is not mentioned in the Constitution, so how could it be legal?
49.
DougV | October 6, 2012 at 9:53 pm
The 14th amendment was actually to stop the states from trampling over the rights of the people, remember prior to the 14th, states were free to set up state religions, ban other religions, their was no requirement for jury trials at the state level, and so forth. The 14th amendment corrected this.
50.
OAAK | December 10, 2012 at 3:16 pm
Completely wrong.
No one, not even Scalia, says that things undreamt of in 1776 (or in 1868, when the XIVth Amendment was adopted) should be *illegal*. The question is whether they can be *fundamental rights* — that is, whether they can be "implicit in the concept of ordered liberty, or deeply rooted in this Nation's history and tradition". Lutz v City of York.
To take your example: it's legal to fly. But there is no fundamental right to form an airline or to travel by air. The Congress could have decided back in the twenties or thirties that civil aviation was dangerous, and banned it, and I doubt you would have a case that that law was unconstitutional. You would have to prove that the ban lacked any rational basis.
There is a fundamental right to marry. Loving v Virginia. For this reason—and because race is a "suspect class"—a law denying interracial couples the right to marriage is not "narrowly tailored" to any "compelling state interest". Scalia doesn't dispute this.
His take on the issue is that, since no one had dreamt of same-sex marriage in 1868, it cannot possibly be "deeply rooted" in American history, or "fundamental to ordered liberty." Therefore, a law forbidding it need only survive rational basis scrutiny, not strict scrutiny. As long as the ballot proponents can give one reason, no matter how weak, that same-sex couples should not be allowed to marry, the law stands. And he probably thinks that there are some reasons. In his Lawrence dissent he said that states are within their rights to ban homosexual acts as contrary to public morals.
A better criticism is that no one much liked interracial marriage in 1868 either. What are the fundamental ingredients of "marriage"? (This is the point where Scalia would open up Webster's 1828 dictionary and notes that, although it doesn't mention race, it does mention gender.) Moreover, if gay people are a "suspect class" under the XIVth amendment, they may be entitled to extra protection from differential treatment. (Then the question is whether Prop 8 really treats them differently; they can still get married like everyone else, just not to people of the same sex.)
By the way I am strongly in favour of same-sex marriage rights. I don't know, though, whether the U.S. Constitution guarantees them.
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