Antonin Scalia

Scalia's Anti-Enlightenment Anti-Individualism

If you think self government means each person is free to govern himself or herself and that the protection of rights and equality under the law serve that end-Scalia says you're wrong.

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Dave Schumaker/Flickr

Conservatives warn that the so-called liberals on the Supreme Court endanger our liberties. This is certainly true, although not exactly as the conservatives mean it. Now it's time for them to acknowledge that the court's conservatives do the same.

Case in point: Justice Antonin Scalia's dissent in Obergefell v. Hodges (PDF), the case that declared state laws forbidding legal recognition of same-sex marriages unconstitutional. Scalia's opinion is worth examining apart from the particulars of Obergefell. As he points out—let's take him at his word—what he objects to in Justice Anthony Kennedy's majority opinion has nothing to do with same-sex marriage per se. What concerns him is not the content of the opinion but the activity the majority engaged in to arrive at it.

As he writes at the very top: "It is not of special importance to me what the law says about marriage. It is of overwhelming importance, however, who it is that rules me. Today's decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court." Specifically, he laments "the Court's claimed power to create 'liberties' that the Constitution and its Amendments neglect to mention."

This is a powerful clue to Scalia's philosophy, which conservatives either embrace or ignore. In Scalia's view we have only the liberties mentioned in the Constitution and its amendments, and those are the only liberties the Supreme Court should concern itself with. This view would be worrisome even if among those amendments we did not find number nine, which states,

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

To quote Rick Perry, "Oops." I guess he forgot.

When the court "creates" rights not expressly mentioned, Scalia says, it "robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves."

If you think that self-government means that each person is free to govern himself or herself and that the protection of rights and equality under the law serve that end—Scalia says you're wrong.

He is sad that court's ruling ended the same-sex marriage debate—a "display[ of] American democracy at its best."

Americans considered the arguments and put the question to a vote. The electorates of 11 States, either directly or through their representatives, chose to expand the traditional definition of marriage. Many more decided not to. Win or lose, advocates for both sides continued pressing their cases, secure in the knowledge that an electoral loss can be negated by a later electoral win. That is exactly how our system of government is supposed to work.

To be sure, he says, the Constitution and its amendments limit such "self-rule":

Forbidden are laws "impairing the Obligation of Contracts," denying "Full Faith and Credit" to the "public Acts" of other States, prohibiting the free exercise of religion, abridging the freedom of speech, infringing the right to keep and bear arms, authorizing unreasonable searches and seizures, and so forth. 

That pesky Ninth Amendment is left out again.

"Aside from these limitations," he continues, "those powers 'reserved to the States respectively, or to the people' can be exercised as the States or the People desire." (My emphasis.)

The collectivist manner in which Scalia defines self-rule reminds me of classical-liberal Benjamin Constant's distinction between the liberty of the ancients and the liberty of the moderns:

The aim of the ancients was the sharing of social power among the citizens of the same fatherland: this is what they called liberty. The aim of the moderns is the enjoyment of security in private pleasures; and they call liberty the guarantees accorded by institutions to these pleasures.

Scalia has the mind of an ancient. It's odd that Scalia regards himself as a defender of the founders' vision when the founders (despite their faults) regarded themselves as men of the Enlightenment. One need not embrace Kennedy's opinion in all its particulars to see that Scalia's ancient philosophy is as much a danger to liberty as anything the so-called liberals might come up with.

This piece originally appeared at Richman's "Free Association" blog.

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  1. what’s funny is how one side sounds very much like the other when its particular hobby horse is affected. It is funny how a good many conservatives who proclaim themselves limited govt people freely use words like “restrict” and “control” when it comes to marriage.

    They will argue that it is not a contract, even though a good part of man’s history reveals marriage to have been nothing but – when two families pair up their offspring, it’s a business deal, a contract. Even when based on romance, each party promises to do certain things for the other and disputes are subject to third-party arbitration. But the right will scream it’s different, “because the children” being the usual justification. Because no one ever raised children before the state began issuing marriage licenses and none of the bad things that would allegedly occur in broadening the definition happen already.

    1. Marriage existed before state-issued marriage licenses, and can survive without licenses. This doesn’t mean the government should be in the business of redefining marriage.

      1. But the government was and is defining marriage and in doing so was (and is) discriminating against people.

        I’d like the government to get out of the business of defining marriage at all, but as long as it’s continuing to do so, then what is the rational basis for depriving homosexuals, polygamists, and the incestuously-abled from participating, too?

        Your contention is that the government shouldn’t be “redefining marriage,” which seems to imply that the default definition of heterosexual marriage should be the standard until the government sees fit to remove itself from the equation entirely. Why?

        1. What is the rational basis for discarding the sex-binary aspect of marriage?

          This wasn’t crafted by a legislative committee or a court, it precedes government – it developed to help children be raised by their parents and to provide a relationship which matches the complementarity of the sexes. (for further details on this complementarity, an on its relationship to children, consult your high school (or grade school, as the case may be) biology textbook.

          1. What is the rational basis for denying two people the right to contract their relationship, regardless of their gender or reproductive capabilities?

            Just because the court did the right thing for the wrong reasons doesn’t mean they didn’t do the right thing.

            No government role in marriage is the best arrangement, so religions can have their sacraments and people can have their traditions unfettered by the heavy hand of the government, and people who believe differently can have their own arrangements. But just because we didn’t get that, don’t think that stopping the prior treatment of same-sex couples isn’t a good thing.

    2. A legal institution has to have some kind of limits to exist, to give it definition. That which is co,eteky unlimited is nothing. The court dictated that one restriction was out of bounds, while maintuaing several others (like limiting to two person.

      What Scalia was argukng wd that the States have the authority to define the shape of marriage, not the court. If not, then marriage should notecist as a legal institution.

    3. The state’s licensure is certainly not a contract, and that was on the table here.

      The question before the court didn’t involve the right to contract. It was about the right to force the state to issue licenses when a somewhat contractual relationship had been entered into. It was only indirectly related to that contract, though.

      So Scalia was pointing this out and complaining that the rights of people to govern themselves–and the right not to issue government goodies when the people don’t see fit to make such raids of states’ treasuries–was being undermined by five justices based on notions of proper values.

      All of that is missed when one conflates licensure with contract.

      1. There’s no need to get bogged down with the differences between licensure and contract. The issue at hand was whether a state’s refusal to issue homosexual couples a marriage license violated Equal Protection under the 14th Amendment. (And there were other constitutional issues at stake, as well, but that’s for another post.)

        The “rights of people [the states?] to govern themselves” matter insofar as those “rights” don’t conflict with the Constitution. Your argument could easily be made in favor of other policies of government discrimination, such as denial of voting rights at the state level based on skin color or sex.

        “The right not to issue government goodies” could also apply to heterosexual couples or elderly people or poor people or people with lots of children, but none of these explain why or justify why the government should continue to discriminate.

        1. The explanation/justification for why government should continue to favorably discriminate is because the people determine that they want their governments to do that. It is because of the self-governance that Scalia supports.

          Me, I’d vote against such favorable treatment. But through the democratic processes we work out among ourselves to whom we want our government to show favoritism.

          If a program of issuing benefits is deemed unconstitutional, it should be ended. The court, though, ordered the opposite: it ordered that benefits be issued without the consent of the people. Again, this is what Scalia was writing against, and I don’t believe it should be that controversial a notion to this audience.

          1. I’m not sure marriage is “a program of issuing benefits.”
            It is a unique institution, that’s not really an institution. It’s human nature to pair bond for life. Everyone should have the right to choose who to spend their life with.
            Marriage includes the right to make life and death medical decisions, own joint property, etc.
            It has been practiced through history, with every group of people the world over, recognizing the fact that two humans become a couple.

          2. regulating marriage is not one the duties that the constitution assigns to the government, so under the 10th amendment it falls to the states or the people , certainly not to the supreme court.

  2. So Antonin Scalia is just like Mario Lanza. Coupla wops, they’re all alike.

    1. I don’t care how many dago, wop, guineas you send, I ain’t given up my rights.

      1. But what about my “right” to gang up with 51% of the voters to go ahead and rob from, murder, and rape the other 49%?!?! Hunh?!?! If Government Almighty (via the 51%) has Spoken, then That is The Word of Government Almighty, Blessed Be It’s Holy Name! And I resemble it terribly, when the SCOTUS takes away these kind of “rights” from me and my fellow 51%…

        PS, I agree w/you about the WOPs? Deep-dish pizzas are all their fault! And with it, my extra 500 lbs of body weight!

        1. I heard deep dish was invented by a Texan.

          1. It was a Texas WOP, is what it was…

            Speaking of Texans, I saw some Wisdom of the Stall the other day…

            Here I sit,
            My cheeks a-flexin’,
            Givin’ birth,
            To another Texan!

            1. Alzo Spake Zaruthrustra… Who thrsutra this upon us all…

              Some come here to sit and think,
              Some come here to shit and stink.
              But I come here to scratch my balls,
              And read the Wisdom, upon the walls!

              Honor Code

              She offered her honor,
              He honored her offer,
              And all night long,
              It was honor and offer!

              He who writes
              On bathroom walls,
              Wraps his shit
              In little balls,
              He who reads these lines of wit,
              Eats those little balls of shit!

  3. The Hobby Lobby issue could have been avoided by not involving employers in the ACA. Besides the employer mandates have holes so big you could drive a truck through (hello McDonalds).

    1. One would think equal protection under law would mean that the ACA would cover birth control equally for men and women rather than various flavors plus not-necessarily excluded ones for women and *maybe* one for men.

      Given the current climate, I can only extrapolate that homosexuals will be compensated by forcing birth control on bakers, photographers, jewelers, etc.

  4. This is a powerful clue to Scalia’s philosophy, which conservatives either embrace or ignore. In Scalia’s view we have only the liberties mentioned in the Constitution and its amendments, and those are the only liberties the Supreme Court should concern itself with. This view would be worrisome even if among those amendments we did not find number nine, which states,

    To quote Rick Perry, “Oops.” I guess he forgot.

    So did you, apparently.

  5. Specifically, he laments “the Court’s claimed power to create ‘liberties’ that the Constitution and its Amendments neglect to mention.”

    Well, not counting the 10th Amendment, anyway.

    The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

    1. Sorry, should be 9th Amendment.

      1. In Scalia’s defense, Congress didn’t tell him that one was going to be on the test.

        1. The 9th has been dead since before Scalia put on the robes. It’s been dead so long it isn’t worth mentioning to him.

    2. and it is not the province of the court to invent new rights where none existed before, such as the newly invented right to dignity, i.e., the right to have the state recognize your particular relationship as a marriage.

  6. “That pesky Ninth Amendment is left out again.”

    Hardly. Scalia is perfectly consistent with the 9th amendment:
    “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

    The powers not delegated to the United States by the Constitution goes to the States, except where they are prohibited by it to the States, in which case they go to the people.

    “In Scalia’s view we have only the liberties mentioned in the Constitution and its amendments”

    No, the Federal Government is *constitutionally* only the guarantor of *some* your rights, those specifically prohibited by the Constitution to the States. What rights you have under your State constitution is up to the people your State.

    Of course, the former United States of America, under the US Constitution, was gradually overthrown by the Progressive Theocracy throughout the 20th century. What was constitutional under that regime, with it’s quaint old Rule of Law, is hardly relevant to today.

    Today, what is constitutional is whatever the Top Men say, and the peasants will take it and like it.

    1. Sorry, Dan, you just quoted the Tenth Amendment. I know, its easy to get them crossed up.

      Really, though, what the Constitution says is about as relevant these days as what the Magna Carta says. They are both relics of a bygone era, interesting mostly as historical artifacts, and useful only as propaganda.

    2. Unfortunately the 3 holy clauses in Article 1, Sec 8 pretty much gives the Federal government unlimited power. Whatever they don’t take is simply up to their discretion.

      Also, the 9th is badly worded just like how the 4th is badly worded with its fatal flaw of the “reasonable” exception.

      “.. are reserved to the States respectively, OR to the people?” What does that mean? It’s conflating two opposing things because States don’t have rights, only individuals i.e. people do. If people have these unenumerated negative rights then it would be in direct contradiction to any rights–positive rights–the States assigns for itself.

      Hell there are contradictions elsewhere. Even Hamilton used Madisons own words and Madisons very own reasoning against him in the creation the Necessary and Proper clause. Hamilton was power hungry, but Madison was an idiot here. And even Jefferson conceded how the Constitution was used to expand government and bind people rather than bind the government as intended (and in a private letter during the revolution, he had anticipated this). Much later Godel nearly didn’t become a citizen because of logical flaws he pointed out to his interviewer which would allow the government to become tyrannical.

      1. That’s the 10th. The 9th just says “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

        Now, conflicts between that and the wording of the 10th (which you quoted) are a whole other can of worms.

        1. Sorry, yes I confused the two. The 10th’s premise of federalism conflicts partially with itself and the 9th’s implied natural rights.

          1. Not so much — the point of including the states is the fact that the states also have constitutions, in which the people of that state can cede certain rights to the state, just as the people of the nation ceded certain rights to the federal government in the US constitution.

            By that wording it would be perfectly acceptable for a state to have the power over intrastate commerce, even though the US constitution only allows the feds control over interstate commerce. Or one state could add control over the practice of medicine.

            But because of the 1st amendment, no state could exert restrictions on free speech, even if they put it in their constitution.

            Of course the 14th amendment makes all of this a lot more complicated these days.

            Not that anyone on the court gives a rip what the constitution actually says…..

  7. I have to wonder, have any of these motherfuckers ever read the damn constitution? The federalist papers? Do they even have a clue what the underlying premises of our founding are?

  8. I think you are confusing “liberties” with “licenses”.

    Nobody was being prohibited from having a marriage ceremony for a same-sex couple.

    Some states had already decided to issue licenses for such unions, others had not yet. Issuing marriage licenses certainly qualifies as one of those powers “the States respectively, or to the people.”

    We were in a very healthy exercise of working this through the legislative process state by state, which I much preferred to judicial legislation.

    1. Thumbs up.

    2. Rich an is an idiot. The funniest thing about this is that Richman seems to think that if the state doesn’t give you its blessing, you are not free to do something. Yet somehow he accuses Scalia of thinking we only have rights of the government says so.

      1. I’m wiling to assume the author has simply been misinformed about the details surrounding this case as he seems to be accepting the version of the story believed by 90% of the people.

        That may be unfortunate, but I wouldn’t make assumptions about his mental abilities based on it.

  9. Scalia doesn’t think the 9th Amendment is justiciable. He thinks it’s just a guide to the policymaking branches of government when they adopt laws.

    He’s wrong about this.

    The 9th Amendment is addressed to everyone who interprets (“construes”) the constitution, and rights “retained by the people” at the time the Bill of Rights was adopted remain as a constraint on the federal government (at which the 9th Amendment was directed).

    So, for example, the powers delegated to the feds don’t include the power to deny people access to the courts, even though this right isn’t mentioned in the Bill of Rights. And the feds’ delegated powers don’t include the right to establish monopolies, though there’s no express ban on such behavior. Access to the courts, and freedom from monopolies, were recognized as rights *at the time the Bill of rights was adopted,* and as such these rights are “retained by the people.”

    This doesn’t authorize the courts to invent *new* rights and stick them in the 9th Amendment. Nor does it authorize the courts to violate the Tenth Amendment and impose limits on the states (as opposed to the feds).

    1. So Scalia’s basic point stands:

      “When the Fourteenth
      Amendment was ratified in 1868, every State limited
      marriage to one man and one woman, and no one doubted
      the constitutionality of doing so. That resolves these
      cases. When it comes to determining the meaning of a
      vague constitutional provision?such as “due process of
      law” or “equal protection of the laws”?it is unquestionable
      that the People who ratified that provision did not understand
      it to prohibit a practice that remained both universal
      and uncontroversial in the years after ratification.
      We have no basis for striking down a practice that is not
      expressly prohibited by the Fourteenth Amendment’s text,
      and that bears the endorsement of a long tradition of open,
      widespread, and unchallenged use dating back to the
      Amendment’s ratification. Since there is no doubt whatever
      that the People never decided to prohibit the limitation
      of marriage to opposite-sex couples, the public debate
      over same-sex marriage must be allowed to continue.”

  10. This misses the question Scalia was responding to, and so it not only misunderstands what Scalia said, but it itself makes the error it accuses of Scalia.

    The question before the court was not whether people could get married. None of the plaintiffs were prevented from being married. The question before the court was whether the plaintiffs could FORCE THE STATE to recognize their marriages. It wasn’t a question of preventing the states’ actions but rather a question of forcing the states to act.

    So Scalia was SUPPORTING freedom when he objected to restricting the states’ policies of inaction. Scalia was agreeing with these ideas of self-government, not saying they were wrong. He was supporting the right of people to do what they wished so long as they didn’t interfere with others’ abilities to do the same.

    It all comes down to misunderstanding of what was actually before the court. The story that states were preventing marriage is factually wrong, so perceptions based on that claim themselves end up 180 degrees out of phase.

  11. Except in this case Scalia is arguing against the court allowing gay people to participate in a government licensing program.

    I disagree with Scalia, but it’s a weird stretch of the ninth amendment to argue that unenumerated rights has anything to do with government marriage licensing. The better example of Scalia’s hypocrisy stems from the fact that he just says ‘fuck it’ and jettisons the fourth and fifth amendments whenever he feels like it.

    1. Plus, the majority decision (which Scalia is writing in response to) did not use the 9th Amendment as their justification. As a result, his criticism of their decision doesn’t even have anything to do with the existence of unenumerated rights.

      1. The majority didn’t use much of anything as a justification.

      2. I’d say the unenumerated right to manage ones’ own licensing program looms large in Scalia’s criticism.

    2. No, he is arguing for States’ Rights and against federal intervention in their licensing policies.

  12. BTW, nice to see the pre-printed signs of the dirty commies at ANSWER featured!

  13. 28th amendment:

    Article 1
    No person may initiate force, threats of force, or fraud against any other person’s self or property.

    Article 2
    Force may be used against those who violate Article 1.

    Article 3
    No exceptions shall exist for Articles 1 and 2.

  14. “Originalism” and “Constitutionalism” are lies. So-called “originalists” and “constitutionalists” ignore parts of the text they don’t like, and invent meanings that they do like, just as much as liberals do. For instance, Scalia ignores the first half of the Second Amendment, which reads: “A well regulated Militia, being necessary to the security of a free State,…”, and invents an unrestricted right to own weapons regardless of ones membership or non-membership in any state militia, which is clearly and obviously not what the authors of the Second Amendment meant.

    1. It doesn’t seem so “clear and obvious” to me (and many others). The “militia” clause you quote reads much more like a justification for universal access to weaponry than a restriction of access to those who belong to “a well regulated militia”. Foremost in the framers minds was the need to have citizens who were not only familiar with the operation of guns but also in possession of their own firearms in case they needed to form a militia.

      Like most people who don’t like the 2nd Amendment, you only read the first part and ignore the part where it explicitly says: “the right of the people to keep and bear Arms, shall not be infringed.” To my mind, there is nothing more “clear and obvious” than the literal meaning of those words and only the disingenuous would claim otherwise. If they had intended it to limit access, they would have phrased it: “the right of the people who belong to a well regulated militia to keep and bear arms…”. They didn’t phrase it that way because that is “clearly and obviously” NOT what they meant.

    2. I know that gun restriction types like to trot that out, but if you can read plain english then you can easily interpret this amendment.

      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.

      The first half says why. The second half says what. The right to keep and bear Arms shall not be infringed. Full stop. Why? Because a well regulated militia is necessary to the security of the state.

      So you might claim that we don’t need a well regulated militia for the security of the state any more. So what? The only remedy for this is repealing the second amendment.

      This amendment clearly and unambiguously says that every citizen has the right to keep and carry any sort of weapon he chooses, without interference from the state. That means pistols. And long guns. And cannons. And machine guns. And RPG’s. And tanks. And anti-aircraft guns… you get the idea.

      So not even Scalia is down with the real meaning of the second amendment.

      But then the first amendment protection on speech actually applies to all speech. Even obscenity, which we know the court has also banned.

      So nobody on the court really gives a rip about the meaning of words or the letter of the law.

      1. And nukes? Tell me you believe the Second Amendment guarantees the right of a private citizen to own a nuclear bomb.

        1. yup. That’s what the words say. I didn’t say or even imply that it was a good idea or good policy. But the letter and spirit of the law is “shall not be infringed”. Note the complete absence of any qualifiers of any sort. No “unless it is really stupid to let people have that sort of weapon”. No “unless it is really dangerous”. No “except if public policy dictates otherwise.

          If we believed in upholding the law, we would have constitutional amendments by the dozens, like the states do. We’d have amendments allowing states to limit the ownership of certain weapons. Or the feds. We’d have amendments allowing restrictions on speech. We’d have amendments allowing the feds to set up things like welfare, medicare, social security, the NSF, NASA, etc.

          But we don’t follow the law. Because it is too cumbersome. So we just let the supreme court decide that there is a compelling public interest in something and then perform mental gymnastics to back their way in to a legal-sounding decision.

          It is the old “the constitution is not a suicide pact” line of reasoning. If we really had a government of laws instead of a government of men, it kinda would be. When the needs of the people bumped up against the limits of the constitution, we’d go through the amendment process. And if there was a real emergency that required going outside the law, real leaders would violate the constitution temporarily and then face the consequences later.

        2. yup. That’s what the words say. I didn’t say or even imply that it was a good idea or good policy. But the letter and spirit of the law is “shall not be infringed”. Note the complete absence of any qualifiers of any sort. No “unless it is really stupid to let people have that sort of weapon”. No “unless it is really dangerous”. No “except if public policy dictates otherwise.

          If we believed in upholding the law, we would have constitutional amendments by the dozens, like the states do. We’d have amendments allowing states to limit the ownership of certain weapons. Or the feds. We’d have amendments allowing restrictions on speech. We’d have amendments allowing the feds to set up things like welfare, medicare, social security, the NSF, NASA, etc.

          But we don’t follow the law. Because it is too cumbersome. So we just let the supreme court decide that there is a compelling public interest in something and then perform mental gymnastics to back their way in to a legal-sounding decision.

          It is the old “the constitution is not a suicide pact” line of reasoning. If we really had a government of laws instead of a government of men, it kinda would be. When the needs of the people bumped up against the limits of the constitution, we’d go through the amendment process. And if there was a real emergency that required going outside the law, real leaders would violate the constitution temporarily and then face the consequences later.

    3. In 1789 “well regulated” meant “properly functioning.” An example would be a clock that kept the correct time was considered well regulated.

    4. The two clauses work like this–

      Since we need X, we have to have Y.

      Lokked at in this manner, there is no need for debate.

      And yes, it does include nukes. Because the security of a Free State might require the militia to use them.

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