I was unexpectedly saddened by the sudden passing of SCOTUS Justice Antonin Scalia this past weekend. As much as I viscerally disagreed with him over his opinions on a whole host of legal and constitutional issues, I still recognized that he was a brilliant jurist, an excellent writer, a man of integrity and a fine gentleman all around.
I’m going to miss Nino Scalia – even though he was scary.
Today I’m remembering why.
This was the man in a black robe on the bench of the highest court in the land who thought that it’s easy to decide “gay rights” cases: the Constitution does not protect gay rights. That’s it; next case! If the Constitution says nothing about gay rights then there are no gay rights. If the Constitution says nothing about abortion then there are no abortion rights. If the Constitution says nothing about breathing then there is no right to breathe. (Err, no, he didn’t say that; I said it for him) It’s easy; next case.
You see, Scalia called himself a "textualist." When writing opinions he strove to apply the words in the Constitution as they were understood by the people who wrote and adopted them 235 years ago. If it’s not in the text, he thought, forget about it!
"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 told the American Enterprise Institute.
Scalia believed that it is a perfectly proper function of federal, state and local governments in this supposedly free country of ours to legislate morality among the populace such that conduct deemed to be philosophically moral or immoral may be rewarded or punished at the whim of the majority. He declared in U.S. v. Windsor: “As I have observed before, the Constitution does not forbid the government to enforce traditional moral and sexual norms…”
Thus, the state could outlaw masturbation but not automatic pistols according to Scary Scalia. That’s what he implied in his dissent in the 2003 case of Lawrence v. Texas. He said the court "has largely signed on to the so-called homosexual agenda… Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children's schools, or as boarders in their home," wrote Scary Scalia. "They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive."
So if a state legislature votes 51 to 49 that a behavior is immoral, they can ban it and no court may declare the law unconstitutional, least of all the Supreme Court, thought Scary Scalia, no matter how unreasonably it infringes upon individual liberty. If a state legislature says you can’t masturbate, eat ice cream, toast your bread, go to bed after 9 p.m., or sleep in until noon, well, then you go to jail, directly to jail and do not pass go.
That’s how the brilliant mind of Scary Scalia worked. It was all part of his Catholic religion – nothing whatever to do with reason or logic. As far as he was concerned the word liberty didn’t carry much weight in the United States Constitution. Recently, he told an audience in Louisiana, that the idea of government religious neutrality is bunk. "To tell you the truth there is no place for that in our constitutional tradition.” So much for the First Amendment Establishment Clause; Scalia had little regard for that.
He liked to say, for example, that there is no right of privacy in the Constitution, therefore the case of Roe v. Wade was wrongly decided and women do not have a constitutional right to abortion. It was just like saying that there is no right to liberty in the Constitution. There is no right to eat in the Constitution; no right to breathe; to walk; to travel; to see; to hear; to reproduce; and on and on and on. All of those rights are derived from the fundamental right to life and liberty. All must be interpreted as recognizable constitutional rights though they are found nowhere in that document.
One couldn’t tell that to Nino.
The Constitution says nothing about Obamacare either but Scalia, apparently forgetting that, would have held that Obamacare is unconstitutional. In other words, congress can ban masturbation; that’s OK, and Scalia would declare it constitutional, but it can’t pass Obamacare; that’s unconstitutional.
You must understand that Antonin Scalia, and all strict judicial constructionists of the Constitution, was only strict about it when it came to furthering his own personal political and religious agenda. Otherwise, he was quick to carve out imaginary exceptions when the mood struck him to do so, and in those instances strict construction went flying out the courthouse window.
Sadly, I think that if Justice Scalia had been on the bench in 1954 to decide Brown v. Board of Education there would still be government sanctioned racial segregation in the United States of America today on the grounds that the Constitution neither requires nor forbids our society to approve of equality for blacks.
Yes, I’m saddened and I’ll miss the guy; but that’s how I will always remember scary Scalia.