Judge Scalia: Strict Constructionist or Unhinged Theocrat?
Blogger Berg and a Lawyer otherwise known as the "Learned Foot" have blogged on Sandra Day OConnor's resignation from the Supreme Court.
I stopped by and offered this counterpoint:
Bush would do well to nominate someone like Judge Ed Prado, a moderate and thoughtful judge rather than a theocratic Scalia clone. Scalia btw, claims to be a "strict constructionist" but doesn't seem to get that the founding fathers purposely left God out of the constitution - focusing rather on "we the people" being where government gets its legitimacy.
Clarence Thomas is a legimate limited government conservative. Scalia is a theocrat who believes in masturbation laws (don't believe me, read his Lawrence v Texas disent).
Posted by: Eva Young at July 1, 2005 06:33 PM
Scalia the theocrat in his own words:
The death penalty is undoubtedly wrong unless one accords to the state a scope of moral action that goes beyond what is permitted to the individual. In my view, the major impetus behind modern aversion to the death penalty is the equation of private morality with governmental morality. This is a predictable (though I believe erroneous and regrettable) reaction to modern, democratic self–government.
Few doubted the morality of the death penalty in the age that believed in the divine right of kings. Or even in earlier times. St. Paul had this to say (I am quoting, as you might expect, the King James version):
Let every soul be subject unto the higher powers. For there is no power but of God: the powers that be are ordained of God. Whosoever therefore resisteth the power, resisteth the ordinance of God: and they that resist shall receive to themselves damnation. For rulers are not a terror to good works, but to the evil. Wilt thou then not be afraid of the power? Do that which is good, and thou shalt have praise of the same: for he is the minister of God to thee for good. But if thou do that which is evil, be afraid; for he beareth not the sword in vain: for he is the minister of God, a revenger to execute wrath upon him that doeth evil. Wherefore ye must needs be subject, not only for wrath, but also for conscience sake. (Romans 13:1–5)
This is not the Old Testament, I emphasize, but St. Paul. One can understand his words as referring only to lawfully constituted authority, or even only to lawfully constituted authority that rules justly. But the core of his message is that government—however you want to limit that concept—derives its moral authority from God. It is the "minister of God" with powers to "revenge," to "execute wrath," including even wrath by the sword (which is unmistakably a reference to the death penalty). Paul of course did not believe that the individual possessed any such powers. Only a few lines before this passage, he wrote, "Dearly beloved, avenge not yourselves, but rather give place unto wrath: for it is written, Vengeance is mine; I will repay, saith the Lord." And in this world the Lord repaid—did justice—through His minister, the state.
Note the citing of the Bible, rather than the constitution, to back Scalia's support for the Death penalty. From the preamble to the US Constitution:
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
I'd like to challenge the MOBsters and Leviticus Crowd types to find references to God, or Christian Nation appear in the Constitution.
Scalia on Masturbation Laws:
"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." - Antonin Scalia, Disent, Lawrence v Texas
Blogger Berg Responds:
Eva, I'm sorry, but that's untrue. Scalia believes the Tenth Amendment was put there for a reason.
Allowing states their tenth-amendment right to pass and uphold their own laws (even if they're "theocrats") is constructionist.
Scalia said in "Lawrence": "It is clear from this that the Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed." The SCOTUS MUST be neutral and interpret THE LAW (as passed by LEGISLATURES), not determine moral norms.
As to your claim that Scalia is a "theocrat" who "believes in masturbation laws", Scalia goes on to say: " Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means. Social perceptions of sexual and other morality change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the best. That homosexuals have achieved some success in that enterprise is attested to by the fact that Texas is one of the few remaining States that criminalize private, consensual homosexual acts. But persuading one’s fellow citizens is one thing, and imposing one’s views in absence of democratic majority will is something else. I would no more require a State to criminalize homosexual acts–or, for that matter, display any moral disapprobation of them–than I would forbid it to do so. What Texas has chosen to do is well within the range of traditional democratic action, and its hand should not be stayed through the invention of a brand-new “constitutional right” by a Court that is impatient of democratic change."
Which is PURELY constructionist, if inconvenient, I suspect, to your personal worldview, Eva. You've clearly misrepresented Scalia, I'd say; are you sure you read it? Or did you let your emotions do the reading? (Or did I miss something)?
THe last thing the SCOTUS needs is another "moderate" who will be eventually stampeded into activism.
Posted by: mitch at July 1, 2005 09:09 PM
Sandra Day OConnor's concurring opinion in Lawrence used a 14th amendment "equal protection" argument. She held that Texas's sodomy law was unconstitutional because it only applied to gays, and didn't also apply to straights. If the court had all ruled with OConnor, the Texas and Arkinsas laws would have been overturned, while the Minnesota law would stay on the books - being an equal opportunity sodomy law.
If Scalia's opinion had been short and to the point, as Thomas's was, I'd have no problem with it. Scalia's disclaimer that he has nothing against gays that you quote, is disputed by the rest of his opinion, where he makes it evident that he clearly does have something against gays.
What's totally ironic is that after the Lawrence Ruling, the constitutional remedy for those upset with the decision would have been a Federal No-Sodomy Amendment (FNA). It's revealing that noone wanted to go there, and instead changed the subject to gay marriage (explicitly excluded from the majority ruling in this case).
Also rather ironic: Clinton when Governor of Arkinsas supported the same sex sodomy ban there, and Bush as Governor in Texas campaigned on the issue of maintaining the Texas same sex sodomy ban when he ran against Ann Richards.