Here Cum Da Judge or, Hot Scalia Action!

Over at Nobody's Business (appropriately enough), Rogier van Bakel wades into the controversy over Justice Scalia's--a dissenter in the Lawrence v. Texas sodomy case--refusal to answer the question, "When did you stop sodomizing your wife?"

A law student named Eric Berndt has been catching a lot of flak for asking Justice Antonin Scalia during a public forum at NYU a few days ago, "Do you sodomize your wife?" According to NYUnews,

Scalia refused to answer the question while the crowd gasped and the administrators promptly turned off Berndt's microphone.

Granted, it's not a very polite thing to ask. But context is everything. Scalia, unbelievably, makes it his business to pass judgment on what consenting adults do in the privacy of their bedroom. Berndt's question was prompted by Scalia's dissent in Lawrence v. Texas, two years ago.

Whole thing here.

Comments

[Xavier]

"Scalia, unbelievably, makes it his business to pass judgment on what consenting adults do in the privacy of their bedroom."

Actually, Scalia decides that it's none of the federal government's business to pass judgment on how states regulate what consenting adults do in the privacy of their bedroom. There's a big difference. That's especially true in the Thomas dissent in that case (and I believe Scalia joined the Thomas dissent).

[andy]

Scalia should be impeached (or whatever they do to shitty judges). His contempt for individual liberty is appalling.

[andy]

"Actually, Scalia decides that it's none of the federal government's business to pass judgment on how states regulate what consenting adults do in the privacy of their bedroom."

Then what business does the federal government have regulating states' laws at all? By that logic, none.

[tomwright]

Who CARES when he stopped sodomizing his wife?

We should be concerned about when he will stop sodomizing US!

[Jennifer]

Xavier's comment strikes me as odd; it seems there is a branch of libertarianism which is defined not as "individual rights" but "majority rule." I mean, hey, if the majority of the people in this state want to outlaw homosexuality, why not let them, right? Sounds like a particularly odious form of collectivism to me, couched as it is in the language of individual rights.

[David]

Cheers to the student with the balls to ask that question. Much to my shame, I would have wussed out. Eric Berndt, Salut!

[R C Dean]

Scalia, unbelievably, makes it his business to pass judgment on what consenting adults do in the privacy of their bedroom.

Xavier got it right; Scalia said that it is not the federal government's business one way or another.

The question of when the federal government has authority and when the states do is a tough one, folks. Where Scalia landed on this one is very defensible, and is probably just about where most H & R types would land if the question were, say, whether the DEA should override state laws allowing medical marijuana.

[Josh]

It's not the Supreme Court's job to decide whether sodomy laws are a good idea, but whether they're Constitutional. Gillespie's write-up is uncharacteristically ignorant here.

[andy]

And how do you defend Scalia's opinion from a Constitutional perspective, Josh?

[R C Dean]

andy would probably be shocked to learn that Scalia's originalist approach to the Constitution is far more protective of individual liberty (which I define more broadly than where you put your willy) than the "living Constitution" balderdash of many of his colleagues.

[Jennifer]

RC-
How does wanting to outlaw homosexual behavior between consenting adults equate to "individual liberty?"

[Xavier]

I agree that homosexual conduct should be legal, but I don't think it's the Supreme Court's place to make that decision. The role of the Supreme Court is strictly to interpret law, not make policy. The Court simply didn't have the constitutional authority to override the Texas law against sodomy. I'm not making any argument about individual rights. I'm supporting adherence to the rule of law. I support strict construction and federalism as good structural values even when I don't like the outcome in a handful of specific cases. Allowing individuals too much discretion in the application of laws is very dangerous for individual liberty.

[Jennifer]

Xavier-
But can't your argument be boiled down to "oppression is only bad if the Feds do it; if it's on a state level then it's all right?"

[Jeff]

Somebody should, strictly as a joke, make a Freedom of Information Act request about Supreme Court Justice sex.
True, we would never see this person again, but it would be really, really funny.

[xray]

If Scalia's Lawrence dissent is truly what he believes, why wouldn't he answer the question? What is he hiding? (I think we all know where he's hiding it.)

[Jason]

Scalia doesn't think that the Constitution has any protections for sexual activity. It certainly requires adding a little to the text of the Constitution to determine that it does have such protections, given how vague it is. So, the question is whether you want your judges adding meaning to the Constitution. If it is adding meaning to protect liberty, then libertarians like it; but if it is adding meaning to enhance government power, the libertarians don't like it.

I'm not saying you can't reconcile these positions, just that it is a far more complicated taks than saying that rights are good. A theory of rights needs to fit within a theory of jurisprudence, and visa versa.

[Evan Williams]

But can't your argument be boiled down to "oppression is only bad if the Feds do it; if it's on a state level then it's all right?"

Jennifer, you're misunderstanding the situation. This here Constitutional Republic we live in was created as "50 experiments in representative democracy". For a primer on Constitutional Republics, go here. Libertarianism opposes oppression, but it is also pragmatically concerned with how to relegate "power". Federalism, within a larger structure of rights protection, is a good way to do this. You might disagree with Federalism, but, well, then you might as well wipe your ass with the consitutition. Realistically, I seek to minimize the intrusion of the government on 2 levels: federal, and my state. Quite frankly, as long as I don't live in Mississippi, I am not going to act as if I have the right to change their government. "Oppression" is never good, but pragmatically, it is the isolation from state to state that makes our actions worth much. If a bunch of commie freaks want to move to New Mexico, take over the state, and run it like a commie empire, fine, as long as they don't affect my life here in VA. I would disagree with them in spirit, but, politically speaking, I would not call upon the federal government to stop them.

[Isaac Bartram]

As I recall, even tho Scalia based his dissent on federalism, he made it pretty plain that he approves of anti-sodomy laws.

I think this may be why Thomas felt the need to write a separate dissent where he made it plain that while he thought anti-sodomy laws where wrong he had no power to tell the State of Texas they couldn't have one.

Although Thomas' critics claim he is just a Scalia clone he has on many occasions used the separate dissent to explain himself. While he concurs with Scalia almost all the time, his reasons are often quite different.

[joe]

Wonkette.com has the entirety of a letter Brandt sent to his school's paper about the episode, and I don't think the quesiton was out of line at all.

Scalia's position on states rights is NOT the only position he took. Before he asked about Scalia's wife's ass-reaming, he asked another question: How compelling is the privacy interest an adult has in keeping his sex life private? Scalia answered that he didn't know how compelling his interest was. So then Berndt decided to help the good justice out, by providing a concrete example of violated sexual privacy to get the old hypocrite's brain working.

So no, RC, the question isn't about federalism. It's about individuals' right to privacy, and the intrustiveness of other people getting into your nookie business.

[Confused]

The Court simply didn't have the constitutional authority to override the Texas law against sodomy.

The Court can't strike down laws it deems unconstitutional?

[andy]

"Scalia doesn't think that the Constitution has any protections for sexual activity. It certainly requires adding a little to the text of the Constitution to determine that it does have such protections, given how vague it is."

Why does it need "protections"? As if being able to choose what gender of consenting adult you want to have sex with was a privlege...

Anyway, since you're obstensibly so keen on strict Constituional interpretation at all costs, doesn't the ban against "cruel and unusual punishment" imply a ban against the prosecution of consentual sexual behavior?

[andy]

*ostensibly 🙂

[Curious]

If Justice Scalia was sodomized his wife while in an RV that was crossing a state line, would that then be a legitimate question? Could we then impose federal restrictions, even if there wasn't any commerce involved?

[thoreau]

Curious-

Simply by sodomizing his wife within a single state, Scalia is affecting interstate commerce in hookers and sex toys. It is therefore perfectly appropriate for the federal government to regulate his anal relations with his wife.

Hey, if it works for some guy growing wheat on his own land for his own consumption, it works for Supreme Court Justices sodomizing their wives.

[xray]

I can't remember, did the Texas law use a broad or narrow definiton of sodomy? In some places a BJ is as good as a trip up the hershey highway. (Which is clearly interstate commerce.)

[joe]

What if thinking about Nino's scaly pud causes the stock market to drop?

[R C Dean]

How does wanting to outlaw homosexual behavior between consenting adults equate to "individual liberty?"

Scalia's views on whether homosexual behavior "should" be outlawed are utterly irrelevant.

What is relevant are his views on how the Constitution apportions power among the various branches and levels of government. On this issue, he is more of an original intent guy than most on the Court. Believe me, someone who believes in original intent is more of a friend to libertarianism that someone who is not.

Oh, sure, your "living Constitution" types will come down on the side of liberty when the fashionable crowd says they should, but overall, they don't really believe we live in country of limited government.

I happen to think it is ridiculous to outlaw homosex. I believe the federal government has no power whatsoever to do so, because I am an enumerated powers guy. Your living Consitution types don't think the enumeration of the federal government's powers really means anything at all, and so they think the federal government can do all kinds of things that I don't think it can. On balance, your liberties are much safer with an original intent/enumerated powers than with a living Constitution approach.

I also believe that the Constitution is silent on the issue of whether the states have the power to outlaw homosex. If you think the Constitution bars the states from regulating sexual activity, then I invite you to point me to those provisions which say as much. In plain English. Something along the lines of "Congress shall make no law . . ." or ". . . shall not be abridged."

I will warn you in advance that I will not be convinced by the "emanation of penumbra" nonsense of the living Consitutionalists' right to privacy analysis.

[joe]

See, the only way you can believe in limited government, is if you believe the police should be able to kick in your door if they don't like certain sexual positions.

If you believe the Constitution requires the government to stay the hell out of your bedroom, you're one step away from Stalin.

BTW, RC, someone who claims such allegiance to the Constitution should be familiar with the 10th Amendment. "Show me where it says..." my ass.

[andy]

"Oh, sure, your "living Constitution" types will come down on the side of liberty when the fashionable crowd says they should, but overall, they don't really believe we live in country of limited government."

Just because many (maybe even most) living constitutionalists are assholes doesn't mean they all are, nor that the "living Constituion" is a bad idea.

Your comment reflects a basic fallacy (whose name escapes this non-philosophy-professor): "I don't like people who think A, therefore A is bad"

[Curious]

"In some places a BJ is as good as a trip up the hershey highway. (Which is clearly interstate commerce.)"

hahaha, no wonder they thought the defense of marriage amendment was constitutional!

[Steve]

RC, for once, joe has a really good point. How do you account for the 10th Amendment?

[Alberto Gonzales]

"The Court can't strike down laws it deems unconstitutional?"

No, the Court can strike down laws that *are* unconstitutional. The constitution isn't a license for the justices to decide, on the basis of their own policy preferences, what laws ought to be permissible and what should be outside the pale.

As I said in my comments on this subject over at The Volokh Conspiracy, "even if Scalia was in the habit of sodomizing his wife six ways from Sunday, he'd [regard that fact as] irrelevant to the question of whether laws against such behavior were constitutional. (I don't know if Scalia sent any of his children to parochial schools, but I'd be very surprised if he would agree with the holding in Pierce v. Society of Sisters. Moreover, his decision in Smith v. Employment Division convinces me that he'd find no constitutional problem with a statute that made it illegal for Catholic priests to possess wine for use in communion. Whether he thinks such a law, or the Oregon law at issue in Pierce, was wise or just would be another question, but one that Scalia would find irrelevant to the legal question he's be called on as a judge to answer."

[dhex]

here's a question for our scholars...

has anyone ever tried to define sexual behavior as a form of speech?

[Mo]

Forget about the 10th Amendment. What about the 9th? My problem with originalists is that one could make a case that Alien and Sedition Acts (and a modern version) is Constitutional. The reason I say this is that originalists use laws that were present in the day of the founders and held up, rather than overturned as unconstitutional, as a mark of what is and isn?t permissible. Since the Alien and Sedition Acts either expired or were repealed democratically, one cannot say the founders thought they were unconstitutional. However, on their face they are a far greater breach of the 1st Amendment than CFR. Why is it allowable for the basis of cruel and unusual punishments to evolve (which many originalists believe even if the disagree with the most recent ruling), but no other portion?

RC,
Do you believe a federal anti-sodomy law would be constitutional? I?m not curious whether you think it is a good idea (I already know that you do not), but whether it would be constitutional. Do you believe that it is based on a lack of federal authority or from a rights based argument?

[rob]

"If you believe the Constitution requires the government to stay the hell out of your bedroom, you're one step away from Stalin." - joe

Actually, if you believe the Constitution requires the federal government to stay out of it entirely you're one step away from becoming a supporter of the rule of law: individual rights first, state's rights second, and that the federal gov't has a limited role in those issues third.

My understanding of Scalia's dissent is that he believed this was not an area that the federal gov't had authority. It's sensible, and it would have kept at least ONE layer of gov't out of our bedrooms entirely.

"Just because many (maybe even most) living constitutionalists are assholes doesn't mean they all are, nor that the "living Constituion" is a bad idea." - andy

I have yet to see a good example of the living Constitution camp have a real respect for the rule of law or the intent of the Constitution to protect individual rights, restrict federal power or prevent intervention at the state and local level. Mostly what I've seen is the "living Constitution" approach used to claim that the Constitution means whatever they say it means - usually in order to enable whatever social engineering scheme is in vogue at the moment.

Even when I believe that the social engineering is a benefit to the society as a whole I disapprove on the slippery slope basis... Once you get the foot of gov't in the door it tends to end up at your kitchen table telling you how to cook your dinner and then eating it before you get a chance to sit down.

The language of the Constitution means what it means, otherwise no contract ever written could be legally enforced, because you can always claim that it REALLY means what you say it means. The Constitution as a legal document is an agreement between the federal gov't and the states, specifically the citizens of "these United States."

Frankly, I don't think the most ruling bodies of the most powerful nation the world has ever known should have unlimited power to re-write the contract to suit those in power.

I realize that there are others who post here regularly who have a completely different view of state power. Those are the folks who believe that it's good for the state to have that kind of power - as long as the decisions agree with their agenda of regulating people they assume are too dumb to handle their own lives. But thankfully that scary day hasn't arrived here quite yet.

[phocion]

It's possible to believe that there are laws that are both dumb and constitutional. Or smart and unconstitutional. It's the job of the courts to decide what laws are constitutional; it's the job of the legislature to decide what laws are smart. I don't fault judges for upholding bad laws if they are clearly constitutional. And that's my feeling about the Lawrence case (even though it was struck down, not upheld). I would have ruled in favor of the state even though I think the law is dispicable and personally have practiced sodomy.

[joe]

"individual rights first, state's rights second, and that the federal gov't has a limited role in those issues third"

This is a false progression. Governments don't have rights, comparable to humans' rights. They have areas of responsibility. Among the federal government's areas of responsibility is the enforcement of individual rights protected under the federal Constitution, including protecting them against actions by state and local governments.

"it would have kept at least ONE layer of gov't out of our bedrooms entirely." Heading spinning insanity here - the government jailing you for sex is "one layer of government in our bedrooms," while forbidding the government from so jailing is...just another layer of the government in our bedrooms."

[xray]

phocion: practice makes perfect!

[joe]

"I have yet to see a good example of the living Constitution camp have a real respect for the rule of law or the intent of the Constitution to protect individual rights"

Brown vs. Board of Education. Virginia vs. Loving. Nope, no respect for individual rights there.

[phocion]

What about the 9th?

The Ninth Amendment contains no positive guarantees of rights (although in recent times judges have taken to interpreting it that way). If we can believe the words of Madison, it was intended to limit federal power to the enumerated areas. In fact, it would make a federal anti-sodomy law illegal under its original purpose. You wouldn't be able to invoke it to overthrow state powers, though.

[joe]

"Frankly, I don't think the most ruling bodies of the most powerful nation the world has ever known should have unlimited power to re-write the contract to suit those in power."

Those in power - you know, like gay people in Texas. Give me a freaking break.

[joe]

phocion, the majority of the Supreme Court didn't overturn Texas' sodomy laws because they thought they were dumb, but because they thought they were unconstitutional, as you say they should.

If you'd like to dissect their reasoning on the constitutional questions they address, I'd be interested to read what you come up with. But simple asserting that they ruled on the laws wisdom, rather than its constitutionality, ignores the rather large number of trees they killed as they laid out their ruling on constitutionality.

[Mo]

phocion,
Let's say, hypotheticaly, that privacy or the right to sex is a "retained" right under the 9th Amendment. Wouldn't it apply to the states via the 14th Amendment like the rest of the Bill of Rights?

I don't disagree with your point regarding bad constitutional and good unconstitutional. But if you and RC believe strict contructionalists aren?t as arbitrary as those that believe in a living constitution, you?re mistaken. For example, why did alcohol prohibition require a constitutional amendment when drug prohibition did not? Has any strict constructionalist ruled against drug laws for their reasons?

[phocion]

joe,

My comment wasn't pointed at the justices, but rather at the people here who think Scalia's a dope because he ruled based on his vision of the constitution rather than the libertarian view of individual liberty. I personally do not believe the 14th Amendment contains a right to sodomy as the majority found, and think the living Constitution can be used to justify infinite government power as well as limited power (as in this specific case). However, at least the justices disagreed with Scalia et al over contitutional interpretation, rather than personal beliefs about sodomy (so we are to believe). Many here don't even bother with the pretense.

[phocion]

Let's say, hypotheticaly, that privacy or the right to sex is a "retained" right under the 9th Amendment. Wouldn't it apply to the states via the 14th Amendment like the rest of the Bill of Rights?

If indeed the 9th Amendment stated that the right of the people to engage in sodomy shall not be infringed, I would be elated about the court's decision and the triumph of freedom over backwardness. I buy into the concept of the Supreme Court having the authority to toss out state laws that violate rights enumerated in the Constitution. As it stands, I do not believe the 9th Amendment says that, so while I do like the effects of the ruling, I don't think it's consistent with what the Constitution says.

[phocion]

For example, why did alcohol prohibition require a constitutional amendment when drug prohibition did not? Has any strict constructionalist ruled against drug laws for their reasons?

They should! While arguing with drug crusaders I often bring up the ol' "Why did we need an amendment to ban alcohol then?" question.

[phocion]

By the way, I've always found Thomas to be more intellectually honest than Scalia. Thomas has shown a greater ability to rule in opposition to his own feelings when he feels the Constitution demands it. His Lawrence dissent being a good example. Scalia on the other hand has been known to move the goalposts a bit.

[joe]

phocoin, the 9th doesn't delineate ANY rights. Are you actually arguing that the amendment that protects unenumerated rights doesn't protect any rights that aren't enumerated?

[joe]

And you accept the existence of unenumerated rights, as the Constitution requires, doesn't that put the burden on contemporary thinkers to define what those unenumerated rights are? Or at least, leave the door open for undiscovered rights to be brought to the fore?

If the people who wrote and ratified the Constitution were wise and humble enough to recognize that there might be some rights that they can't think of at the moment, and leave the door open for "new" rights to be recognized, why should we contradict them, and insist that the only rights that exist are those that the Constitutional Conventioneers described?

[ChicagoTom]

I may be mistaken,

but wasn't there an equal protection issue with the law as well? I thought that the law only banned sodomy from same sex people? Am I wrong on that?

Furthermore, whether or not you believe its an issue of states rights or not, couldn't the case be made that States don't have the right to regulate sexual acts consenting adults?

Why should states be allowed to make laws that dictate where you can put your dick if the receiver of said dick likes where its being put?

It seems like laws like this shouldn't exist in the first place and that's why they need to be struck down

[Phil]

The language of the Constitution means what it means . . .

Thanks for the tautology. Now, given that, please define the following phrases for me, using only the language that is in the Constitution:

1. "Cruel and unusual punishment"
2. "Shall not be infringed"
3. "Excessive fines/bails"
4. "Unreasonable searches and seizures"
5. "Due process"
6. "Speedy and public trial"
7. "The assistance of counsel"
8. "Just compensation."

[Isaac Bartram]

For those who asked, from the link:

...under a Texas law prohibiting "deviate sexual behavior" (i.e., oral or anal sex) between persons of the same gender. ...

[Xrlq]

Isaac:

As I recall, even tho Scalia based his dissent on federalism, he made it pretty plain that he approves of anti-sodomy laws.

You recall wrong. Justice Scalia's dissent, which was joined in full by Justices Rehnquist and Thomas, goes into great detail about the history of sodomy laws, but it doesn't say a f'n thing about whether such laws are good, bad or indifferent. Rogier van Bakel simply made that part up.

I think this may be why Thomas felt the need to write a separate dissent where he made it plain that while he thought anti-sodomy laws where wrong he had no power to tell the State of Texas they couldn't have one.

Nope. If Justice Thomas had felt a need to distance himself from Scalia's position, he wouldn't have signed onto it himself.

Jennifer (to Xavier):

But can't your argument be boiled down to "oppression is only bad if the Feds do it; if it's on a state level then it's all right?"

Yes, if you equate "constitutional" with "good" and "unconstitutional" with "bad." The Supreme Court's job is to interpret and apply the written Constitution, not the Libertarian Manifesto.

Joe:

If the people who wrote and ratified the Constitution were wise and humble enough to recognize that there might be some rights that they can't think of at the moment, and leave the door open for "new" rights to be recognized, why should we contradict them, and insist that the only rights that exist are those that the Constitutional Conventioneers described?

Because that's not what they did. For one thing, the Ninth Amendment only provides that the enumeration of certain rights shall not be construed to deny or disparage others, it doesn't affirmatively protect those other rights. For another, even if it did, the Ninth Amendment by its terms applies only to those "retained" by the people, it doesn't give courts carte blanche to make up new rights the people never had to begin with.

[rob]

joe, you're either deliberately misunderstanding me, or you don't understand what I wrote.

"This is a false progression. Governments don't have rights, comparable to humans' rights. They have areas of responsibility." - joe

I'm not going to argue state's rights with you, so would it make you feel any better if I simply changed my statement to "state's powers second"? You know, in keeping with the 10th Amendment and all... (I think you're as equally imprecise in stating that they have are AOR's rather than powers.) However, I would argue that what was intended in the 10th is a protection of individual rights primarily by restriction of federal powers 1st and state powers second and that nothing is mentioned about AORs.

"Among the federal government's areas of responsibility is the enforcement of individual rights protected under the federal Constitution, including protecting them against actions by state and local governments." - joe

Show me where the Constitution addresses sodomy - based on the 10th, I'd say that laws regulating that behavior belong to the states, and that the federal gov't passing an anti-sodomy law would be unconstitional. (Ok, phocion explained it better.)

"Heading spinning insanity here - the government jailing you for sex is "one layer of government in our bedrooms," while forbidding the government from so jailing is...just another layer of the government in our bedrooms." - joe

It's always head-spinning insanity if you don't understand the difference between state and federal powers. This seems disingenuous after you just "corrected" me... SCOTUS determining that the state can or can't arrest you for consensual sodomy - or consensual sex with a minor/statutory rape, for that matter - reaches into your bedroom in ways some might consider intrusive.

But I don't think it's up to the federal gov't to shoot down state laws that are constitutional just because you believe in the right to sodomy. I believe that state anti-sodomy laws are, sadly, constitutional "dumb laws" as per phocion's earlier post. For the record, I am opposed to "constitutional dumb laws," I just don't think Scalia's reasoning was insupportable.

"Brown vs. Board of Education. Virginia vs. Loving. Nope, no respect for individual rights there." - joe

Thanks for the good examples of rulings I think may have been good for the nation in the short-term, but bad for the Constitution and the rule of law, separation of federal and state powers, and limitations to federal infringement on individual rights in the long run. (It's actually Loving v. Virginia, FYI.)

"Those in power - you know, like gay people in Texas. Give me a freaking break." -joe

Ok, here's your freaking break - explain to me how the "living Constitution" approach doesn't open the door to abuse by those in power to twist the Constitution to suit themselves? Just because the twists are agreeable to our social agendas at this point doesn't mean that allowing this kind of maneuver won't come back to haunt us all in the end.

[Isaac Bartram]

Thomas' dissent:

Justice Thomas, dissenting.

I join Justice Scalia's dissenting opinion. I write separately to note that the law before the Court today "is ... uncommonly silly." Griswold v. Connecticut, 381 U. S. 479, 527 (1965) (Stewart, J., dissenting). If I were a member of the Texas Legislature, I would vote to repeal it. Punishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources.

Notwithstanding this, I recognize that as a member of this Court I am not empowered to help petitioners and others similarly situated. My duty, rather, is to "decide cases 'agreeably to the Constitution and laws of the United States.' " Id., at 530. And, just like Justice Stewart, I "can find [neither in the Bill of Rights nor any other part of the Constitution a] general right of privacy," ibid., or as the Court terms it today, the "liberty of the person both in its spatial and more transcendent dimensions," ante, at 1.

Emphasis mine.

[thoreau]

Isaac-

I don't know if I agree with Thomas's opinion, but it is at least reasonable and respectable.

[Sen. Rick Santorum (R-PA)]

If Justice Scalia wants to try a little sodomy, I'm game.

But he should realize that it starts out there, and next thing you know it's full man-on-beagle action.

Trust me, I've been there.

[rob]

Phil,

The easiest way to define how I would approach defining all of those terms is via the "reasonable man" standard briefly defined at

http://www.jurisdictionary.com/dictionary/dictionary%20r.htm

[thoreau]

FWIW, I'm very glad to hear that Scalia refused to comment on whether he and his wife engaged in sodomy. There are some things that I am happier not knowing, and that's one of them.

[Isaac Bartram]

thoreau at April 15, 2005 05:16 PM

I feel the same way.

I confess that I find Thomas' somewhat slavish devotion to precedent somewhat disquieting. This is not the first time he has done the "this law really sucks but hey I have no poer to change it" dance.

On the other hand, in it I see a man who is devoted to a concept of the rule of law, and not out to exercise his own caprices.

Man you're fast. Two more posts including a "santorum" while I was composing this modest piece. 🙂

[Isaac Bartram]

D'oh

"poer" > "power"

[Isaac Bartram]

...the Ninth Amendment by its terms applies only to those "retained" by the people, it doesn't give courts carte blanche to make up new rights the people never had to begin with.

The amendment has nothing to do with "making up rights". It has to do with rights existing which may have not been enumerated because they had not been recognized or discovered (like joe said).

As an aside. Among those who opposed the Bill of Rights were some who did not want to enumerate rights for fear that some might think that these were the only rights possessed by the people.

[phocion]

phocoin, the 9th doesn't delineate ANY rights. Are you actually arguing that the amendment that protects unenumerated rights doesn't protect any rights that aren't enumerated?

The 9th Amendment was born out of a fear that enumerating rights in the Bill of Rights would lead to people assuming that the federal government can do anything not explicitly prohibited by the Bill of Rights, instead of merely carrying out the enumerated powers in the Constitution proper. In other words, Madison was afraid the Bill of Rights would have the end result of increasing rather than decreasing the scope of federal powers.

What the Ninth Amendment DOES NOT say is that future federal judges can imagine rights they might think they are important (increasingly based on what other countries are doing), grant them the same overturning power of the other, specifically-listed rights, and use them to overturn the 10th Amendment rights of each individual state. Up until 1965 or so, I don't believe the 9th Amendment was ever construed by the Supreme Court as granting the federal courts the ability to strike down whatever they please, if they think the state legislature violated an unwritten right.

[andy]

"Scalia goes into great detail about the history of sodomy laws, but it doesn't say a f'n thing about whether such laws are good, bad or indifferent"

Oh, bull fucking shit. It's clear as day that he was saying "sodomy's been illegal for a long time, so why stop now?"

[Antonin "buttboy" Scalia]

Wow, 64 posts.

Nothing like a little butt sex to get this lot going.

[Xrlq]

Andy, it's only "clear" because you're hallucinating. I defy you to produce a single paragraph of Scalia's opinion criticizing any of the 36 states that did not ban sodomy.

[andy]

"Andy, it's only "clear" because you're hallucinating. I defy you to produce a single paragraph of Scalia's opinion criticizing any of the 36 states that did not ban sodomy."

Whatever. Just because the Constitution doesn't specifically allow for something doesn't mean the government has the right to take that right away. We don't know what the Founding Fathers would have thought about a lot of things, but that doesn't matter. They were just people, fallible as anyone else, and the Constitution is just a piece of paper, although a pretty damn respectable one at that. It is our duty to make sure that an individual's rights (unpopular as they may be to the majority) aren't violated. Period. The SCOTUS is not free of that burden, either. I don't care what anyone says, it is their job to do what is right, and regardless of your personal interpretation of the Constitution, they should always vote on the side of liberty.

[Phil]

For another, even if it did, the Ninth Amendment by its terms applies only to those "retained" by the people, it doesn't give courts carte blanche to make up new rights the people never had to begin with.

I suppose if one is going to use only the most literal definition of the word "retained." Tell me, if you pay a retainer to a lawyer to acquire his services, did you already have them in the first place?

rob, can you please show me where the "reasonable man" standard is in the Constitution? Because if it isn't there, then you're already far down the road to admitting that there are things besides the actual language of the Constitution and the original intent of the writers that we have to rely on to make judgements.

I also am not sure how much merit to give a cite which includes language like, "The motto of this nation is, "In God we trust." God is truth. God is found in court by seeking truth through the exercise of human reason," and " Though some militant feminists might proclaim this an oxymoron, the "reasonable man" is a concept critically essential to the very framework of our civil judicial system."

So, I'll ask you again: Where in the Constitution are the definitions of the phrases I excerpted?

[Dan]

The question isn't "can a person form a credible argument that the Constitution protects the right to have sex with the person of your choice in the manner of your choice". We're discussing whether Scalia acted in bad faith -- the relevant question is "does a credible argument exist that the Constitution *doesn't* protect tha right to sexual freedom". The answer is yes, a credible argument to that effect does exist, which is why nobody noticed the existance of that right during the previous 200+ years of the Constitution's existance:

- No explicit positive right to sexual freedom (or freedom to choose what to do with your body) can be found in the Constitution.
- Common law contains a long tradition of people *not* having full rights over their own body (e.g., vice laws and laws against suicide).
- There is no evidence that the founders discussed such a right as being one humans were naturally endowed with

Now you might say "well, *I* can form a good argument that it IS protected". Good for you! That's not the point. The point is that an argument -- a rationally reasoned, legally-based, non-disingenous argument -- can be made for either side. So it is ridiculous to automatically assume that Scalia is just making shit up in a rabid attempt to "ban gay sex".

What people can't seem to get through their heads is the idea that a person can believe that an activity should be legal without believing that the Constitution mandates that it be legal. I think it should be legal for me to shoot anyone who tries to rob my house, regardless of whether or not they're armed. But it's not legal, at least in California, and the Constitution doesn't say anything about it. I could form an argument that I have an unenumerated right to protect my property; the legal history supporting such a right is far better than any supporting a right to sexual freedom. But that doesn't mean that, were I to shoot an unarmed burglar and be sent to prison for it, any judge who refused to read a "right to shoot intruders" into the Constutition must automatically be guilty of acting in bad faith.

[rob]

Phil,

Merit the site however you wish, it's just a concise definition of the reasonable man concept, and my using that site certainly doesn't mean I endorse everything on the site. (Pardon me for clubbing the obvious to death...) At any rate, the reasonable man standard is certainly one of the foundations of our system of justice and governance. Much like the philosophy of John Locke, whose name is not in the Constitution, but whose fingerprints are all over it.

Your argument is basically tantamount to "the Constitution doesn't include a dictionary." No kidding... So what? And how does this have bearing on the subject at hand?

If you're looking for me to "admit" that interpretation of the Constitution requires something beyond the Constitution, you're welcome to read some Bertrand Russell. I'm not interested in arguing the nature of reality with you or playing "definition games" with you.

I still think the strict constructionist approach is the least likely to lend itself to abuse by those in power to twist the Constitution to suit themselves and that the "living Constitution" approach is the one most likely to lend itself to such abuse.

You can argue what the meaning of "is" is as well, but it rapidly becomes... well... Orwellian is the most polite way I can describe it.

I suspect people who prefer the "living Constitution" approach do so because it means that, as one brainwashed law student once told me, "the Constitution means whatever we say it means." While you can also argue that the definition of red is actually green, but that doesn't make it so. (And good luck arguing that in traffic court.)

[thoreau]

Here's what it comes down to:

It's one thing if Scalia thinks the sodomy laws are unjust but also thinks that there's nothing in the US Constitution giving the Supreme Court the authority to overturn such laws. Whether or not you agree with this stance, it's at least a respectable stance.

So here's the question to ask: If Scalia were a member of a State Legislature, would he vote to overturn the sodomy laws?

I have a hunch he'd vote to keep such laws in place.

[Doc]

A follow up question would be to ask if he's ever J/O'd. Remember his dissent in Lawerence where he said if they struck down laws against sodomy, then laws against masturbation could be next! The horror!

🙂

[thoreau]

Remember his dissent in Lawerence where he said if they struck down laws against sodomy, then laws against masturbation could be next!

He actually said that?!?!?

[ispdrudge]

"But I don't sodomize my wife, I sodomize
YO' MAMA!"

[kevrob]

The Founders were strong on humans having natural rights - those "inalienable" ones we were endowed with by nature, or its god. Whether the Framers thought we had a right or not is irrelevant to that view of a proper polity. The Constitution was an attempt to construct a framework for building a long-lasting republic. I expect that Madison, and I know that Jefferson and Hamilton, thought that it would have been truer to the vision of liberty to outlaw slavery in the founding document. That would not have been prudent, unless one was willing to risk the dissolution of the Confederation into several smaller ones, likely to be played one against the other by the European powers, and gradually absorbed back into the colonial system the U.S. had escaped. Nevertheless, had a Supreme Court, sometime before the Civil War, declared that the Ninth Amendment protected every human from ownership by another, I would have had no problem with it. Probably that sort of abolition would only hold sway in D.C. and in the territories, but I can imagine a John Quincy Adams making it. Would that have violated the powers of the states under the 10th amendment? Would it have violated the "property rights" of Washington City's slavemasters? If so, they could have been compensated, and the Fifth Amendment would be satisfied.

As for whether the "privacy right" could be justified on 9th Amendment grounds, I would hope that many here are familiar with Randy Barnett's argument that it was liberty that was upheld in Lawrence, not privacy.

I've been a fan of Barnett since his ground-breaking The Rights Retained by the People. It was there that I was clued in to Justice Goldberg's concurring opinion in Griswold, which is much less convoluted than Douglas's majority finding, and calls on the Ninth explicitly.

One can't "discover" a right in the Ninth that doesn't arise from the nature of the human being, but the Framers didn't have perfect knowledge of all those rights, either.

Kevin

[Serafina]

Scalia's dissent in Lawrence is really a trip to read. He claimed that the court had "largely signed on to the so-called homosexual agenda," had "taken sides in the culture war," and made a ruling that called into question "state laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity." He approvingly noted that anti-sodomy laws, even though rarely enforced by the police, could be invoked by judges to deny gays and lesbians legal custody of their children, equal employment guarantees, and other civil rights.

"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,'' he wrote, "They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive."

[Dan]

and made a ruling that called into question "state laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity."

Well, could you explain why, if the Constitution protects a right to sexual freedom, or privacy, or whatever, consentual incest, prostitution, bigamy, and bestiality *wouldn't* be protected by it? And don't say "well, they should be". That's not the point.

Especially since, in reality, they won't be. The court will find itself mysteriously unable to locate this right in the Constitution once a culturally unacceptable form of freedom comes up.

[Nick]

Gunnels

[rob]

Recent posts make extremely good points...

I guess we're at the point of trying to decide whether we think SCOTUS should rule on whether or not there is a "right to sexual freedom" which, although not mentioned in the Constitution, might or might not be the equal of the rights that ARE enumerated in the Constitution. (Sort of like the "right to privacy" perhaps? Certainly privacy is not equal to the enumerated rights, but it's currently an accepted right.)

If SCOTUS then ruled there is such a right to sexual freedom, subsequent rulings would probably be required to determine how far that right extends.

I'm not sure that I'm looking forward to rulings determining whether a right to sexual freeedom would extend to Dan's list of "consensual incest among adults, prostitution, bigamy, and bestiality," or the list Serafina mentions of "bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity." Or even my example of consensual sex with a minor... Blech!

I still haven't seen a convincing argument that anti-sodomy laws aren't "constitutionally sound, but stupid." I haven't seen a convincing argument that a right to sexual freedom is either enumerated or implied by the Constitution. I would argue that failing a ruling by SCOTUS that such a right exists, its omission means it is the business of the states, rather than the federal gov't.

Let's face it, if you boil it down to its essence the 2d Amendment is intended to prevent the gov't from abridging the right of self-defense (from other citizens, invading armies, the gov't itself, etc). But as Dan pointed out, in California he can't shoot an unarmed burglar and expect the judge to clear him of charges due to an unenumerated right to protect his property that makes it legal for him to to shoot unarmed burglars.

Right to self-defense, yes. Right to protect one's property, yes. Right to use an unwarranted level of force to kill someone - who doesn't pose a physical threat - to prevent the theft of your property... uh, probably not. (Now if what they're stealing means you'd likely die, it's self-defense again. Like stealing your horse in the desert, for example...)

Can a similar standard be applied to this case? I think a good faith argument can be made...

[Seamus]

"I have a hunch he'd vote to keep such laws in place."

That may well be, so libertarians should think it a good idea to keep Scalia on the bench, where he seriously believes that his personal beliefs about what laws ought to be enacted are irrelevant, and that he has no choice but to give effect to the laws enacted by the legislature whether he likes them or not, unless they conflict with a provision of the constitution.

[thoreau]

Nick-

What does that article have to do with Gunnels? I couldn't figure it out.

[quasibill]

The problem with Scalia in specific, and originalists in general, can be summed up with one hypothetical:

Where would they have voted in the Dred Scott decision?

Yup. You guessed it - Scalia signs on to the majority decision.

Now, if you're comfortable with that position, well, more power to you. Me - I'd rather have ->some

[Don]

Just because many (maybe even most) living constitutionalists are assholes doesn't mean they all are, nor that the "living Constituion" is a bad idea.

Your comment reflects a basic fallacy (whose name escapes this non-philosophy-professor): "I don't like people who think A, therefore A is bad"

The living constitution is a bad idea; it breaks down the rule of law and the restrictions on the power of government.

Are all the people who support the idea bad? No, but I'm sure that a lot of Stalin's supporters were nice people, too.

[Don]

But if you and RC believe strict contructionalists aren?t as arbitrary as those that believe in a living constitution, you?re mistaken. For example, why did alcohol prohibition require a constitutional amendment when drug prohibition did not? Has any strict constructionalist ruled against drug laws for their reasons?

Because the New Dealer's showed us how to ignore the constitution. Their argument has something to do with interstate commerce. Specifically, the idea that the fed power to regualte interstate commerce gives them the power to regulate anything that effects interstate commerce . . .

[Don]

What people can't seem to get through their heads is the idea that a person can believe that an activity should be legal without believing that the Constitution mandates that it be legal.

Uh, no.

Sodomy should be legal, but the federal government shouldn't be forcing that position on the states, since the Constitution doesn't give the feds that authority.

I think it should be legal for me to shoot anyone who tries to rob my house, regardless of whether or not they're armed. But it's not legal, at least in California, and the Constitution doesn't say anything about it.

Actually, in California you are under no obligation to retreat in your home, and you are free to assume that an intruder is armed and dangerous unless you know otherwise (assuming the intruder has broken in; if you invited him in it is different).

Basically, in CA you can shoot an unarmed intruder.

You are correct that the Constitution--state of federal--say nothing about it.

[rob]

quasi - I don't know that I could agree with you on that. There seems to be a couple of assumptions in your statement that includes a greater leap of faith than I think you can reasonably make. 1) SCOTUS at the time of Dred Scott were acting as strict constructionists of today would. 2) Scalia would have signed on to the majority decision in Dred Scott - something that is truly unknowable.

While I'm open to being convinced on #1, I just don't think your counter-factual (#2) makes sense because it takes someone from the current day and moves them back to pre-Civil War times. I could just as easily say that Scalia would be the most liberal judge on the SC by comparison with the justices of the day and it would make about the same amount of sense.

It's not "what if the battle at Thermopylae had ended differently," (where such an outcome could have actually, conceivably occured) as opposed to what if someone who actually lives today had lived in a past era.

[Don]

The Dred Scott decision was based upon the judicial activisim that blacks were exempt from the rights protected in the constitution--despite the fact that nothing in the constitution says so (and despite the fact that many of the founding fathers clearly believed otherwise). Consequently, a strict constitutionalist would have gone against the majority.

Dred Scott is a good example of why a living constituion is bad.