October 18, 2005

"The Constitution is ... dead."
by Lorraine Berry

As it is, however, the Constitution that I interpret and apply is not living but dead--or, as I prefer to put it, enduring.
--Justice Antonin Scalia, "God's Justice and Ours," First Things (May 2002)

In remarks given at the University of Chicago and later excerpted here, Antonin Scalia gave a clear exegesis of the philosophy of Constitutional fundamentalism. (You can call it strict constructionism all you want--fundamentalism is what it is, and if Christian fundamentalism and Muslim fundamentalism are frightening because they allow no room for any notion of human "progress," than why the hell should anyone let a Constitutional fundamentalist off the hook?)

In this particular case, Scalia was referring to the Eighth Amendment, "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." Scalia was addressing the question of how he, as a Catholic, could continue to uphold the right of the State to inflict the death penalty. Scalia's tapdance on the head of a pin would make a Scholastic proud.

Scalia's view of the Eighth Amendment gives an insight into a view of American history that is freeze dried in September, 1789, and makes me more grateful than I can say that the 14th Amendment is on the books.

Scalia opens his argument with a most specious and cynical statement. "Before proceeding to discuss the morality of capital punishment, I want to make clear my views on the subject have nothing to do with how I vote in capital cases that come before the Supreme Court." This from a man who regularly injects his personal morality into cases that have come before him. For example, in his sputtering dissentin Lawrence v. Texas in which he asserted that law schools in this country had been overtaken by a "homosexual agenda."

 Today's opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct. I noted in an earlier opinion the fact that the American Association of Law Schools (to which any reputable law school must seek to belong) excludes from membership any school that refuses to ban from its job-interview facilities a law firm (no matter how small) that does not wish to hire as a prospective partner a person who openly engages in homosexual conduct. See Romer, supra, at 653.

What Scalia goes on to argue is that the right to engage in sodomy is not a fundamental right, that if it was against the law in 1789, then dagnabit, it's forever against the law. Thus, for Scalia, since the death penalty was regularly imposed in 1789, banning the death penalty now is how it should stay. Or, as Scalia phrases it, "It was clearly permitted when the Eighth Amendment was adopted...and so it it clearly permitted today."

Using Scalia's argument, abortion was clearly permitted in 1789 (the first anti-abortion statutes did not appear until decades later), therefore, abortion should remain legal. But that is always carefullly elided from any comments Scalia makes on the topic of abortion. But to repeat, Justice Scalia does not rule on the basis of his own personal morality, therefore, it is not his personal opprobrium of homosexuality and abortion that guides his rulings on such matters. It's based on that dead Constitution he's so awfully fond of.

According to Scalia, since the Constitution did not specifically enumerate the right to abortion, no such right exists. Of course, one has to completely ignore the Ninth Amendment, which specifically states that rights not enumerated in the Constitution shall be presumed to be preserved for the people. For Scalia, the fact that there were laws against abortion on the books at the time of the passage of the 14th Amendment means that the 14th Amendment cannot be used as the basis for a right to privacy. (Try to follow the logic here: capital punishment is subject to whatever rules were in place in 1789 when the 8th was written; but the rules that were in place just after the Civil War govern how the 14th is supposed to be interpreted.) But to insist that the right to privacy exists only in the 14th Amendment is to virtually ignore the 9th Amendment and the 4th Amendment (The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.)

Scalia argues that rights to abortion, marriage equality, and other expansions of human rights may only come to the American people through amendments to the Constitution. Which makes his declaration that the Constitution is "dead" a ridiculous argument. If the Founding Fathers had intended the document to remain as it had been written in 1789 (that wonderfully enlightened era of slavery and such restricted suffrage that only a handful of people could vote) they would have written a clause into it that said, "That's it. We're done. Keep your mitts off." But they didn't. Not only is it written into the Constitution the method by which the thing may be amended, they also clearly clearly intended the Constitution to not be taken as a strict enumeration of the only rights available to a free people.

P.S. I read the Scalia article when it first appeared and found it while digging through a box of research material. The article annoyed me all over again, and, given the current focus on the right to privacy and the nominees to the Supreme Court, reviewing Scalia's twisted logic seemed like good practice for anticipating what we may be in for.

Posted by in Abortion, Catholicism, Civil Rights, Culture War, Extremists, Government, History, Homosexuality, Human Rights, Law, Reproductive Rights, Roe vs. Wade, SCOTUS, SCOTUS Research, Supreme Court
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