Justice Antonin Scalia has died. The death is already causing a bit of a political crisis as Democrats and Republicans argue over how the justice's successor will be named to the Court, particularly in an election year.
Behind all of this political wrangling is one simple fact: Scalia was very conservative. He consistently wrote opinions that drew the ire of liberals, while conservatives praised his incredible ability — as perhaps the Court's strongest writer — to eloquently explain their legal positions.
Fundamentally, Scalia's conservatism rested on one idea: The US Constitution is more constrained than his more liberal colleagues would suggest — and trying to interpret the Constitution loosely will allow the Court to strike down legitimate laws and, in the end, undermine democracy.
Perhaps no chain of cases demonstrated this better than Scalia's very consistent opposition to gay rights. In his view, it wasn't so much that he was opposed to gay rights — although he was — but that such rights simply weren't protected by a very originalist interpretation of the Constitution and its amendments.
Scalia's opposition to gay rights showed his brand of conservatism
Scalia was a consistent opponent of constitutional claims made on behalf of gay rights. He opposed striking down states' anti-sodomy laws. He opposed striking down the federal ban on same-sex marriage. And he opposed striking down states' bans on same-sex marriage.
At the heart of Scalia's opposition to gay rights was his view that the US Constitution simply did not protect the rights of gay people. So in the three major cases that came to the court since 2003, Scalia opined against gay rights in sometimes brutal dissents.
His colleagues, of course, argued that the 14th Amendment protected gay people — by forbidding any level of government from passing discriminatory laws that denied people their fundamental rights.
Scalia rejected the view, claiming the Constitution, the 14th Amendment, and their framers made no mention of gay rights and therefore did not intend to protect gay people.
More broadly, Scalia feared that his colleagues were reading their views into the Constitution and dangerously expanding the document's reach, so that the Court could undermine democracy and upend state and federal laws that were, in his view, perfectly legitimate.
For instance, in Lawrence v. Texas in 2003, where the Court ruled that states' anti-sodomy laws — which effectively banned gay sex — were unconstitutional, Scalia warned in his dissent that the logic used to strike down the ruling could upend states' laws against same-sex marriage:
State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers’ validation of laws based on moral choices. Every single one of these laws is called into question by today’s decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding.
He did it again in 2013, in United States v. Windsor, when he warned in his dissent that striking down the federal ban on same-sex marriage would lead to the legalization of same-sex marriage nationwide:
In my opinion, however, the view that this Court will take of state prohibition of same-sex marriage is indicated beyond mistaking by today’s opinion. As I have said, the real rationale of today’s opinion, whatever disappearing trail of its legalistic argle-bargle one chooses to follow, is that DOMA is motivated by "'bare . . . desire to harm'" couples in same-sex marriages. Supra, at 18. How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status.
Scalia, ultimately, proved to be right. The Supreme Court reasoned that all these anti-gay laws were unconstitutional for largely the same reason: They discriminated against a group of people by withholding fundamental rights and violated the 14th Amendment.
In the 2015 ruling that ultimately legalized same-sex marriage nationwide, Obergefell v. Hodges, Scalia made it very clear in his dissent that he was very unhappy that he turned out to be right. He argued that the Court had empowered itself to effectively overturn democracy at its will.
In his scathing opinion, Scalia wrote that the majority opinion a "threat to American democracy," and argued it "robs the People of … the freedom to govern themselves" while "lacking even a thin veneer of law."
Scalia even argued that the Court was too elitist and out of touch with much of the country to overturn states' bans on same-sex marriage:
Take, for example, this Court, which consists of only nine men and women, all of them successful lawyers who studied at Harvard or Yale Law School. Four of the nine are natives of New York City. Eight of them grew up in east- and west-coast States. Only one hails from the vast expanse in-between. Not a single South-westerner or even, to tell the truth, a genuine Westerner (California does not count). Not a single evangelical Christian (a group that comprises about one quarter of Americans), or even a Protestant of any denomination.
At every step, from 2003 to 2015, one can see Scalia's increasing frustration about what he saw as his out-of-touch colleagues taking their broad interpretations of the Constitution too far — and that broad interpretation ultimately allowed the Court to strike down statutes that were democratically enshrined into state law.
One can of course question Scalia's logic — many legal scholars arguethat the 14th Amendment was deliberately phrased in a vague way in order to protect groups that the framers may not have conceived of. But Scalia simply rejected that notion.
Scalia advocated for an originalist interpretation of the Constitution
Underpinning his opinions was Scalia's view of a much more constrained Constitution than his liberal colleagues held. Scalia defined himself as an originalist: He argued that the Constitution should be read purely in the context of its text and the intentions of the framers, not personal beliefs or modern social conventions. This differs from some of the more liberal justices on the Court, who take a more fluid interpretation of the Constitution.
"The Constitution is a dead document," Scalia argued in 2005. "It is an enduring document that does not change, or at least does not change at the whim of the Supreme Court, but rather it changes as provided in its text as amendments are adopted."
Scalia claimed that this extended to some of the conservative causes he himself supported: "[Because of originalism] I cannot do the wicked conservative things I would want to do to this society."
(One could of course argue whether Scalia applied his originalist principles consistently. Here is one such critique.)
Scalia's stance on gay rights demonstrated his originalist view: He believed the Constitution couldn't protect gay rights, because no one could envision, for example, same-sex marriage as an issue back when the Constitution and its amendments were written.
So in Scalia's view, the court's pro–gay rights decisions read rights and limits into the Constitution that simply didn't exist, and therefore allowed the Court to strike down laws that were, in his opinion, constitutionally valid.
As Scalia told the American Enterprise Institute in 2012, "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 was a consistent opponent of constitutional claims made on behalf of gay rights. He opposed striking down states' anti-sodomy laws. He opposed striking down the federal ban on same-sex marriage. And he opposed striking down states' bans on same-sex marriage.
At the heart of Scalia's opposition to gay rights was his view that the US Constitution simply did not protect the rights of gay people. So in the three major cases that came to the court since 2003, Scalia opined against gay rights in sometimes brutal dissents.
His colleagues, of course, argued that the 14th Amendment protected gay people — by forbidding any level of government from passing discriminatory laws that denied people their fundamental rights.
Scalia rejected the view, claiming the Constitution, the 14th Amendment, and their framers made no mention of gay rights and therefore did not intend to protect gay people.
More broadly, Scalia feared that his colleagues were reading their views into the Constitution and dangerously expanding the document's reach, so that the Court could undermine democracy and upend state and federal laws that were, in his view, perfectly legitimate.
For instance, in Lawrence v. Texas in 2003, where the Court ruled that states' anti-sodomy laws — which effectively banned gay sex — were unconstitutional, Scalia warned in his dissent that the logic used to strike down the ruling could upend states' laws against same-sex marriage:
State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers’ validation of laws based on moral choices. Every single one of these laws is called into question by today’s decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding.
He did it again in 2013, in United States v. Windsor, when he warned in his dissent that striking down the federal ban on same-sex marriage would lead to the legalization of same-sex marriage nationwide:
In my opinion, however, the view that this Court will take of state prohibition of same-sex marriage is indicated beyond mistaking by today’s opinion. As I have said, the real rationale of today’s opinion, whatever disappearing trail of its legalistic argle-bargle one chooses to follow, is that DOMA is motivated by "'bare . . . desire to harm'" couples in same-sex marriages. Supra, at 18. How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status.
Scalia, ultimately, proved to be right. The Supreme Court reasoned that all these anti-gay laws were unconstitutional for largely the same reason: They discriminated against a group of people by withholding fundamental rights and violated the 14th Amendment.
In the 2015 ruling that ultimately legalized same-sex marriage nationwide, Obergefell v. Hodges, Scalia made it very clear in his dissent that he was very unhappy that he turned out to be right. He argued that the Court had empowered itself to effectively overturn democracy at its will.
In his scathing opinion, Scalia wrote that the majority opinion a "threat to American democracy," and argued it "robs the People of … the freedom to govern themselves" while "lacking even a thin veneer of law."
Scalia even argued that the Court was too elitist and out of touch with much of the country to overturn states' bans on same-sex marriage:
Take, for example, this Court, which consists of only nine men and women, all of them successful lawyers who studied at Harvard or Yale Law School. Four of the nine are natives of New York City. Eight of them grew up in east- and west-coast States. Only one hails from the vast expanse in-between. Not a single South-westerner or even, to tell the truth, a genuine Westerner (California does not count). Not a single evangelical Christian (a group that comprises about one quarter of Americans), or even a Protestant of any denomination.
At every step, from 2003 to 2015, one can see Scalia's increasing frustration about what he saw as his out-of-touch colleagues taking their broad interpretations of the Constitution too far — and that broad interpretation ultimately allowed the Court to strike down statutes that were democratically enshrined into state law.
One can of course question Scalia's logic — many legal scholars arguethat the 14th Amendment was deliberately phrased in a vague way in order to protect groups that the framers may not have conceived of. But Scalia simply rejected that notion.
Scalia advocated for an originalist interpretation of the Constitution
Underpinning his opinions was Scalia's view of a much more constrained Constitution than his liberal colleagues held. Scalia defined himself as an originalist: He argued that the Constitution should be read purely in the context of its text and the intentions of the framers, not personal beliefs or modern social conventions. This differs from some of the more liberal justices on the Court, who take a more fluid interpretation of the Constitution.
"The Constitution is a dead document," Scalia argued in 2005. "It is an enduring document that does not change, or at least does not change at the whim of the Supreme Court, but rather it changes as provided in its text as amendments are adopted."
Scalia claimed that this extended to some of the conservative causes he himself supported: "[Because of originalism] I cannot do the wicked conservative things I would want to do to this society."
(One could of course argue whether Scalia applied his originalist principles consistently. Here is one such critique.)
Scalia's stance on gay rights demonstrated his originalist view: He believed the Constitution couldn't protect gay rights, because no one could envision, for example, same-sex marriage as an issue back when the Constitution and its amendments were written.
So in Scalia's view, the court's pro–gay rights decisions read rights and limits into the Constitution that simply didn't exist, and therefore allowed the Court to strike down laws that were, in his opinion, constitutionally valid.
As Scalia told the American Enterprise Institute in 2012, "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."
1 Comments:
My understanding of his decisions is that Justice Scalia did not believe that the judges on the Supreme Court should be the moral spokespeople for the whole country. He did not believe they should enact Federal mandates proclaiming what should or should not be the moral absolutes of the countries citizens. He believed the states could democratically pass laws which upheld the moral beliefs of the majority of its constituency. He felt the Supreme Court had no legal right to interfere with those democratically legislated laws. Scalia felt that the elitist Court members were out of touch with how many Americans feel and believe and were pushing their pro-homosexuality agenda. We fine the same agenda present here in Europe coming from the top down and contrary to the morality of the local populations. But through a constant barrage of propaganda in all aspects of daily living, we are taught that to believe in God and His Word is old-fashion, conservative, narrow-minded etc. It might very well be because Jesus said, "Broad is the way and wide is the gate that leads to destruction and many are they that go in there at; but narrow is the way and straight is the gate that leads to eternal life, and few there be that find it."
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