There wasn’t much doubt about how Supreme Court Justice Antonin Scalia likely would rule on such matters as the death penalty, gay marriage and abortion, but it’s interesting to hear him articulate the reasons behind his hypocrisy.
Several years ago Justice Scalia told the world that the letter of the Constitution only says Congress will pass no law with respect to the establishment of a national religion. Ergo, there’s no reason why the individual states couldn’t do so: South Carolina could become a Southern Baptist state and disenfranchise all those who were not Southern Baptists. Utah could become a Mormon state and disenfranchise all those who were not Mormons. Michigan could require strict adherence to Muslim belief, California could go to the Zoroastrians, and so on. The Constitution – Scalia’s Constitution – says that’s O.K.
Therefore, we have no right to privately engage in consensual gay sex because it does not explicitly state so in the Constitution, and women have no right to abortion for that same reason. And putting people to death? That’s cool by Scalia. We’ve always done it. Of course, the Constitution doesn’t explicitly state we have the right to eat cauliflower, and if the government were to ban it I assume that would happen with Scalia’s blessing. Then again, the Constitution doesn’t explicitly state we do not have the right to gay marriage, abortion, and cauliflower, and “cruel and unusual punishment” carries a time-stamp.
At the time of the Constitution, certain forms of execution such as boiling a prisoner to death in oil, dismemberment, and clubbing them to death remained in use, although by the early 19th Century some people had started reconsidering. Even so, the death penalty often was applied for the crimes of homosexuality, non-marital sex, oral sex, being a Quaker, being a Negro…
Ah, Antonin! Good times, eh?
In a speech before the American Enterprise Institute, a far-right wing “think tank,” Scalia said “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.” He was tossing red meat to an appreciative crowd of rabid wolves.
The Constitution famously says “A well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed,” (this is the version the states actually ratified) but it makes no definition of either a militia or what constitutes firearms. In 2008 the Supreme Court held that the Second Amendment protects an individual’s right to possess a firearm even if he/she is not with a militia. This opinion was not based upon language found in the Constitution, but it was written by Justice Scalia. He pulled it out of his ass and revealed himself to be a liar, a hypocrite and a zealot.
The Justice calls himself a “textualist,” and I don’t doubt his commitment to his own fantasies. According to John F. Manning’s Textualism as a Nondelegation Doctrine, “Textualist judges have contended, with much practical impact, that courts should not treat committee reports or sponsors’ statements as authoritative evidence of legislative intent… [and] that giving weight to legislative history offends the constitutionally mandated process of bicameralism and presentment.” You just can’t say that when a legislator says he’s written a law for a reason, his statement does not convey his intent.
It’s like saying whatever is in your bible is fine but all those millennia of bible commentary are a load of crap. Time marches on, life goes on, things evolve. When the Second Amendment was passed we did not have semi-automatic machine guns, tactical nuclear weapons, silencers, dum-dum bullets or magnesium alloy compound bows with high-modulus polyethylene strings. Not that I’m personally opposed to any of those objects, I just don’t think a textualist would believe the states’ constitutional delegations had that stuff in mind back in 1791. And if they wanted people to be allowed to possess firearms without being in a militia, they wouldn’t have said “A well-regulated militia being necessary to the security of a free state…” Either way, I don’t think they had in mind the Posse Comitatus as an example of a well-regulated militia.
Don’t get me wrong. I am all in favor of guns and crossbows. However, I am opposed to lying hypocrites on the Supreme Court who use fancy, meaningless language to push his personal religious and societal agendas.
Scalia “We can disagree with one another on the law without taking it personally.” That, Mr. Scalia, depends upon whose ox is being gored.
Mike Gold performs the weekly two-hour Weird Sounds Inside The Gold Mind ass-kicking rock, blues and blather radio show on The Point, www.getthepointradio.com , every Sunday at 7:00 PM Eastern, rebroadcast three times during the week (check the website above for times) and available On Demand at the same place. He also joins Martha Thomases and Michael Davis as a weekly columnist at www.comicmix.com where he pontificates on matters of four-color.