A gay time with Antonin Scalia

Last night I was at the Intercollegiate Studies Institute’s 50th Anniversary Gala. The food, drink, music, dancing — all great. The speakers were a mixed bag, with Mitch McConnell and William F. Buckley, Jr., being the highlights.

Senator Rick Santorum being asked to lead the audience in saying the Pledge of Allegiance was an omen that not all would be as pleasant, and the remarks by Justice Antonin Scalia proved this expectation true. Despite a request for no visual media coverage, the AP has published this report of the event complete with photo.

The article is good, but by focusing only on what Scalia said about the recent Lawrence decision it misses the more astonishing and alarming quotes — such as Scalia calling the Bill of Rights an “afterthought” to the “real Constitution.” He wasn’t just being overly literal; throughout the speech he derided the liberal emphasis on individual rights as opposed to majority rule.

I’m sympathetic to the idea that our current view of the Constitution is more liberal rights oriented than the Founders’ was (see Akil Amar’s The Bill of Rights for an interpretation like this), but Scalia takes this view to absurd lengths. What, after all, makes the “real” Constitution so good except that it checks a government’s power over minority interests by enumerating and separating powers and establishing a federal system? (Fed 10, anyone?)

Scalia seemed to undercut his own argument when he concluded by praising ISI for bringing conservative minds together. He noted that this is important since people’s thoughts are effected by what the people around them think, which strikes me as a reason to be skeptical of majority rule.

The lesson of the night: hearing Scalia in front of a room full of supporters is a frightening experience.


11 thoughts on “A gay time with Antonin Scalia”

  1. Um the Bill of Rights is an afterthought to the Constitution. That is by definition what amendments are; changes made to an original after it is completed. Im not sure what context you are quoting him in. Two words in quotations surrounded by your own thoughts can be very misleading. I know you dont have a transcript so I can’t really fault you there.

    The Constitution is not a pure libertarian document no matter how much you may want it to be. There are specific individual rights it guarantees to all citizens, but drug use, sodomy, and prostitution are not in there. Majorities make those decisions. I would prefer this be done at the state level rather than the federal level though. Each state can decide which individual liberties they wish to protect beyond those guaranteed in the Constitution. Californians can make drugs legal and Utah can ban them.

  2. My concern is more with the way Scalia denigrated the importance of the Bill of Rights than with whether the document is an “afterthought.” And while it’s true that the amendments were ratified after the Constitution itself, they were popularly demanded from the beginning and a number of states included proposals for the protection of specific rights along with their ratification papers. The Constitution may never have been accepted without the promise of a Bill of Rights, which speaks for its importance at the time of the founding.

    It’s true that drug use, sodomy, and prostitution are not explicitly protected rights in the Constitution. But does this necessarily matter? The Ninth Amendment states that “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” The Fourteenth states that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law…”

    Both make it clear that the number of legitimate rights and liberties is open ended. Looking just at the Ninth Amendment you could make an argument for local majoritarian rule over may issues, but especially after the Fourteenth Amendment the Constitution must be read to protect individuals’ liberty against intrusive state governments.

    Law Professor Randy Barnett has a fascinating article on the subject called “[Justice] Kennedy’s Libertarian Revolution” that traces the jurisprudence over whether protected rights must be specifically enumerated in the Constitution (it is in response to Kennedy’s decision in Lawrence, which relies on “liberty” instead of the right to privacy). You can read it from the link below or see his lengthier article in The Cato Surpreme Court Review, 2002-2003.


    I do agree with you that experimentation among states is a great way to proceed on controversial issues and is a strength of the federal system. However, if Lawrence is a signal that the Court is going to put more pressure on states to provide legitmate reasons for laws that restrict activities between consenting adults, I think that’s a welcome event.

  3. “…especially after the Fourteenth Amendment the Constitution must be read to protect individuals’ liberty against intrusive state governments.”

    The “without due process of law” part of the 14th Amendment implies to me that a state could deny specific liberties as long as it is done through the legislative process (decided by a majority). Thus it applies to all citizens of that state and is not denying a specific citizen rights granted to other citizens of that state (discrimination).

    Having nine people in black robes in Washington D.C. deciding if a state has given “legitimate reasons” for the laws it chooses to pass is a scary thought and totally undemocratic. The Constitution should be the final arbiter, not some vague and subjective test of “legitimacy”.

  4. At least you’re in respected company, Joel — that’s the same argument Scalia makes. I’m more comfortable with judges ruling on the legitimacy of laws, especially on morally charged but victimless crimes, than I am with relying on majorities to do so. I don’t have any arguments of my own here, but here’s what Barnett says in the article I linked to above (he refers to Scalia):

    “This is wrong on two counts.

    “First of all, the “due process of law” includes judicial review. And judicial review includes an examination of whether the government is acting within its delegated powers. That is why, in U.S. v. Lopez and U.S. v. Morrison, the Supreme Court could properly strike down a federal statute that exceeded the power of Congress under the Commerce Clause.

    “Second, both the Ninth Amendment and the Privileges or Immunities Clause of the Fourteenth Amendment authorize the protection of unenumerated (and unenumerable) liberty rights “retained by the people.” The Ninth protects against federal violations of liberty rights; the Privileges or Immunities Clause protects against violations by states like Texas of liberty rights plus the Bill of Rights and other privileges or immunities of its U.S. citizens.

    “Judicial conservatives move heaven and earth to excise these two provisions from the Constitution, because they think neither is definite enough to confine judges — a charge that is untrue if one relies on the original meaning of these provisions. But disregarding the text of the Constitution because it does not comport with your vision of the “rule of law” is as much judicial “activism” — if one must use this phrase — on the right, as it is when the Left discards the text because it does not meet their vision of “Justice.” In either case, judges are substituting for the text something they prefer, which in this case is silence where the Constitution is in fact speaking quite eloquently.”

  5. Another question is why does Scalia even bother to add that the Bill of Rights was an “afterthought”? Surely it’s irrelevant whether it was or not – any amendment to the constitution carries just as much weight as what is in the original document. And while I accept that liberals such as me always talk up the 1st amendment and talk down the 2nd, Scalia is surely falling into the reverse trap, or has he been actively handing down decisions curbing gun control that I’m not aware of?

  6. Well, I haven’t taken Conlaw in law school yet, but I’ve never been one to avoid posting my opinion, so here goes…..Let’s face it. The Constitution is an irredeemably vague document. The Ninth makes vague reference to some other rights….out there…somewhere…floating in the wind. The Fifth and Fourteenth make reference to “due process of law”, whatever that means.

    Taking a page out of the strict constructionists’ book, let’s look at WHY it was written so vaguely. I can think of two reasons the Founders did that. First, they were an eclectic bunch with wildly varying ideas of what a proper republican government should look like and what was wrong with the Articles of Confederation and why the hell they fought the Revolution in the first place. Second, they knew that specificity would be a Constitution’s downfall. If too many things were set in stone, the Constitution would be too rooted to a specific time and place and would become unwieldy and useless when social change came about. [Take, for instance, on of the rare moments of specificity in the Bill of Rights…the 7th Amendment saying people have a right to a jury trial for any suits over $20. Well, gosh, there goes my jury trial right for my $15 lawsuit! Inflation quickly rendered this specific requirement (meant to withold the costs of jury intervention in tiny, simple lawsuits) meaningless.]

    What to do with vagueness? Why read meaning into it of course! The actual language of the Constitution provides vague borders within which to fit one’s analysis…but really it’s a pretty free range of clashing ideas in there. At one time, most legal thinkers thought laissez-faire economics was fundamental to the Constitution. When the Depression hit, that thinking changed. I find nothing wrong with this…both fit their times.

    Who’s to interpret this vagueness? In my view….everybody! There’s nothing I can see in the Constitution to make one particular branch supreme (or one particular gov’t…state vs. federal). I actually believe Congress has the right to ignore the Supreme Court’s interpretation of the law if it should so choose, but it would risk major appearances of illegitimacy and it would make a law that would not be enforced in court, etc. And so the cutthroat competition of the constitution goes on! I’m not that bothered by “judicial activism” becaust that’s really just a label someone puts on a court decision they don’t like. If they DO like it, then it’s the court making the right decision.

    As for my particular views on Lawrence, I’m much more comfortable with the “privacy” justification over the “liberty” justification. While I do believe the words of the Constituion are vague guidelines, they ARE guidelines nonetheless and one should be very careful about straying too far from them. “Liberty” is such a vague word that could justify anything. “Privacy” is a step closer…derived from the “penumbras” of the various privacy protections in the Bill of Rights. It’s always better to stick as close to the text as you can. It’s more legitimate. But sometimes, the text just doesn’t leave you much to stick to.

    On a side note, I’ve heard Scalia is actually a really likeable guy in person. He’s gone before crowds and liberal colleges and the students have generally come away respecting him and liking him…..if still disagreeing wholeheartedly and vehemently with his views. I personally like his sarcasm.

  7. Oh, and before Joel responds to my “doesn’t leave you much to stick to” comment….I meant that for both sides of some particular debate. Not just for the liberals.

  8. “Who’s to interpret this vagueness? In my view….everybody!”

    Ben this seems to be right in line with Scalia’s point. The vagueness in the Constitution you refer to is there so that the people (everybody) can decide what liberties should be permitted (through the legislative process).

    “I’m more comfortable with judges ruling on the legitimacy of laws, especially on morally charged but victimless crimes, than I am with relying on majorities to do so.”

    Jacob would rather have 9 judges decide because he thinks average citizens are too stupid. But I wonder if you would say this if there were nine Scalias on the bench. You happen to like the rulings this court has made so you are comfortable with it.

    National Review has a good response to Jacob’s arguments. I will post the link but here is the money quote:

    “One advantage of leaving as much choice as possible about what is “necessary and proper” and what is “oppressive” to the people is that they don’t have to follow the logic of liberty or radical individualism to its conclusion. They can, Scalia observes, decide to legalize gay sex but the draw the line before gay marriage. Or they might go as far as gay marriage but leave the non-individualistic assumptions of marriage law itself in tact. The Constitution, for the most part at least, leaves it to the people to compromise between individual liberty and social or moral responsibility at any particular time.

    Scalia’s constitutional view is not that the legalization of gay sex or even gay marriage is ridiculous. But he did well to mock the idea that there is anything in the Constitution that allows the Court to declare a “constitutional right” that the people are bound to accept.”

    link: http://www.nationalreview.com/comment/lawler200310270839.asp

    It’s important to note that we have no idea what Scalia’s views are on sodomy. We can’t say the same for Justice Kennedy. That is what Scalia was mocking. Kennedy is invoking his personal moral views on sodomy in his decision and is using the Constitution as an AFTERTHOUGHT. There is no evidence that he will allow the Constitution to limit him in any way.

  9. Joel, you raise some good points. You’re right that I’m a lot happier now than I would be if there were 9 Scalia’s on the bench. Despite this, there’s a reason I trust the Court more than I do the people or their legislative representatives on such issues: the Court can do very little to limit individual freedom. It can allow legislatures and police to behave in intrusive or oppressive ways, but by itself it is relatively powerless.

    Legislatures, on the other hand, have the power to make new laws. They also tend to move slowly to repeal old ones, even when they are archaic or have been repealed throughout much of the rest of the country.

    So between a Court than can strike down laws and a legislature that faces popular re-election every two years, I trust the Court to be more likely to defend the rights of unpopular minorities.

    If the Court really does overstep it’s bounds, the people have recourse to amending the Constitution. It’s difficult to do, yes (a good bias inherent in the system), but it can happen. In cases where there’s not enough popular sentiment to do so, I’d rather err on the side of caution and let the final word go to the Court.

    Finally, it’s important to note that the Court is not as insulated from public opinion as we often make it out to be. Even in it’s Lawrence decision the Court was careful say that it was not making any implications about the necessity of gay marriage, which seems to be an indication that they care about the public’s reaction to their decision.

  10. Joel, when I said “everybody” I meant it more in the institutional sense. I think Congress, The Supreme Court, and the Executive (and perhaps the states) all have the right and the pow My reading of the Constitutional division of powers is a very cuthroaat competition among the various branches….far more “no-holds-barred” than has ever been practiced in reality. I think Congress could, for example, pass a law outlawing abortion (setting aside federalism concerns here for the moment) and President Bush could try and enforce it. They would just have to realize that they would be sacrificing their legitimacy on a massive scale and that the courts would not enforce these laws because they would still be bound by the Supreme Court’s ruling.

    I admit, this is a rather extreme view. It is partly descended from a view of the Dred Scott decision taken by Abraham Lincoln and other antislavery people and partly from my very formalist reading of the Constitution. It’s admittedly a pretty scary view. But precisely because it’s so scary, I sincerely doubt the branches will ever descend into such open warfare….it would make our system of government unworkable!

    I say all this with the disclaimer that this came from my reading of the Constitution back in Junior year with no legal training. I can’t even remember every step I took in coming to this conclusion and, since my hard drive crashed when I started law school, I’ve lost the paper where I made the argument. In a year or so, with a bit more legal training under my belt, I may look at the Constitution in a very different way.

    Jacob, remind me and at some point I’ll explain why I think that Roe v. Wade does not at all follow from Griswold v. Connecticut. As you might have guessed, I don’t think there is a Constitutional right to abortion. And even if there was, it certainly wouldn’t be on the basis of the poorly reasoned approach we get in Roe!

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