A Matter Of Interpretation

'Family of Marsupial Centaurs' by Salvator Dali 1940

 

Supreme Court Justice Antonin Scalia commenting on abortion and homosexual rights vis-a-vis the Bill of Rights. As a primer on the subject, a quote from Justice Scalia's book, 'A Matter of Interpretation: Federal Courts and the Law':

The American people have been converted to belief in The Living Constitution, a "morphing" document that means, from age to age, what it ought to mean. And with that conversion has inevitably come the new phenomenon of selecting and confirming federal judges, at all levels, on the basis of their views regarding a whole series of proposals for constitutional evolution. If the courts are free to write the Constitution anew they will, by God, write it the way the majority wants; the appointment and confirmation process will see to that. This, of course, is the end of the Bill of Rights, whose meaning will be committed to the very body it was meant to protect against: the majority. By trying to make the Constitution do everything that needs doing from age to age, we shall have caused it to do nothing at all. [Emphasis mine]

Video Transcript:

I’m in the business of enforcing democracy. What democracy means is that on controversial issues, even stuff like homosexual rights, abortion, whatever, we debate with each other and persuade each other and vote on it. Either our representatives or through a Constitutional amendment in the states, we decide the question. Now there are some exceptions to that in any liberal democracy, and in ours, most of those exceptions are contained in the Bill of Rights. But that Bill of Rights was adopted by the majority which is why it is proper in a democracy to have a Bill of Rights, because the majority adopted it.

Now when they adopted it what did they take out of that general principle? What did they take out of that general rule of democracy? That we allow open speech, we persuade each other and we vote. What did they take out of it? They never took out these issues…abortion, homosexual conduct. Nobody ever thought that they had been included in the rights contained in the Bill of Rights which is why abortion and homosexual sodomy were criminal for 200 years. Now whether that’s a good idea or bad is not what I’m talking about. That’s not my job to say that. It is my job to say whether the Bill of Rights has taken it out of the realm of democratic debate. Just because you feel strongly about it…it isn’t necessarily in the Bill of Rights. [h/t Jay @ Stop The ACLU]

Anybody got a problem with that?

The irony of course is that Justice Scalia spent his life defending what the Liberals keep alleging to be the worst offences committed by Consveratives: usurping the democracy by circumventing strict formalistic processes. Yet, their charge against Scalia is, that he is too formalistic.

Of all the criticisms leveled against textualism, the most mindless is that it is "formalistic." The answer to that is, of course it's formalistic! The rule of law is about form. If, for example, a citizen performs an act--let us say the sale of certain technology to a foreign country--which is prohibited by a widely publicized bill proposed by the administration and passed by both houses of Congress, but not yet signed by the President, that sale is lawful. It is of no consequence that everyone knows both houses of Congress and the President wish to prevent that sale. Before the wish becomes a binding law, it must be embodied in a bill that passes both houses and is signed by the President. Is that not formalism?

A murderer has been caught with blood on his hands, bending over the body of his victim; a neighbor with a video camera has filmed the crime; and the murderer has confessed in writing and on videotape. We nonetheless insist that before the state can punish this miscreant, it must conduct a full-dress criminal trial that results in a verdict of guilty. Is that not formalism? Long live formalism. It is what makes a government a government of laws and not of men.

Right there, another glaring proof of Liberal hypocrisy. The conservative vote matters more than ever.

Comments

[ckreiz]

because you feel strongly about it…it isn’t necessarily in the Bill of Rights. Ya gotta love it; what a great line. For many, their emotional conviction somehow translates to a constitutional elevation, which of course is absurd. Scalia hits this just right.

[gringoman]

From Red Violin: Homosexuality and sodomy are not synonymous at least not to me

From gringoman:

Red,

As you seem to see no relation, I will assume that the PC police must accept your claim of not being a 'homophobe,' despite your objection to (revulsion for?) sodomy.

However, I don't know if the American Heritage Stedman's Medical Dictionary can make that same assumption, as one of their definitions of sodomy is the following:

sod·om·y (sd-m)
n.

Anal copulation of one male with another.

[Francis W. Porretto]

"In some cultures (philippines, Iran before, I'm not sure now, etc...) homosexuals don't engage in the act of sodomy. However, here in the west almost all homosexuals do. I guess it's cultural..."

Uh, no, actually, it's, uh...(cough)...anal.

[Red Violin]

Homosexuality and sodomy are not synonymous at least not to me. In some cultures (philippines, Iran before, I'm not sure now, etc...) homosexuals don't engage in the act of sodomy. However, here in the west almost all homosexuals do. I guess it's cultural...I don't know. I'm in no position to judge anyone. I will leave that up to God. All I know is that the act of sodomy is unnatural and immoral according to my religous views. My background in biology also tells me that some homosexuals have no choice in the matter when the pre-natal hormones are kicked in and their brains are organized differently. So, no I'm not a homophobe but thanks for inquiring.

[gringoman]

Red Violin:

I know abortions and sodomies are wrong period

Red Violin,

If you don't mind, I'd like to take this issue just a little bit further. Specifically, I want to pin you down on 'sodomy.' Note: There is totally and absolutely nothing personal in this. I really don't feel like an ad hominem anyway. This is strictly for clarification in the minefield we all live in today---I refer, of course, to the landscape of Politically Correct. This landscape, whether we like it or not, or wish to avoid it or not, leads inevitably to a certain question. My only request: Try not to blame me for asking it. I'm only raising the implicit.

So let me put it this way: Does being against sodomy make you, as our society's au courant pc argot puts it, a 'homophobe'?

If not, could you explain why not?

ps. I know this, to some, may have the whiff of an indictmnent, but it's not that at all. Believe me. Civil sodomists or anti-sodomists are welcome to chime in.

[Ann]

Alexandra, excellent post. Why is Scalia the most misunderstood and perpetually misjudged justice even by our own?

Rich, thanks for the list. I would love to read more.

Red Violin, no you did not fail. I and most who read ATB understand perfectly exactly what it is that you meant to say.

[Red Violin]

antimedia: You obviously didn't understand what I wrote. I don't need justice Scalia to tell me whether abortion is wrong or right or whether the majority should decide whether it's wrong or right. I know abortions and sodomies are wrong period. I don't need any man-made law to determine that for me in my personal life. And as far as voting goes, I take that privilege very seriously and it's very sacred to me more so than you would ever understand. My argument had nothing to do with politics. I was just trying to delve deeper than our usual and highlight our own spiritual responsibilities outside of any political spheres. Obviously I failed.

[antimedia]

Red Violin writes

But why should we need Justice Scalia or any ohter laws to tell us abortions and sodomies are wrong? Shouldn't we know this viscerally and spiritually?

Apparently you didn't read (or perhaps understand) what Justice Scalia wrote. He did not say abortions and sodomies are wrong. He said those are issues for the people to decide, not the courts.

If you want your government to be a certain way, you have to do something about it, not talk. You have to vote, not whine. You have to participate, not pontificate. The greatness of America is that if you want your ideas to dominate, you must convince others to join you through reason, not force. Not the force of the gun, and not the force of the courts.

If conservatives can't understand that, why should you expect liberals to?

[Rosemary]

Great post! I love Scalia. Sometimes I do not like his decisions, but I trust his opinions. I don't have to worry whether or not he made it up out of whole cloth.

BTW, could someone please point me to the part of the Bill of Rights where it states, "Seperation of Church and State"? I just don't happen to be able to find it. Hmm. Have a great day.

[jainphx]

If you dont want another Scalia or Roberts,or Alito than stay home,don't vote let the Demoscabs take controll,that will teach them Republicans.

[rich]

Excellent Post. It is always good to learn about our Constitution.

May I recommend two books on the Constitution for (ambitious) laymen. They are by a Yale Law Professor named Akhil Reed Amar.

Amar clerked for Breyer at the 1st Circuit Court of Appeals in Boston and apparently is also a member of the Federalist Society. So he is connected to both the left and right.

I found the books because of a footnote referring to one of them in the KANDIRAKIS opinion by Judge William Young.

Judge Young, who made a memorable sentencing speech in the Shoe Bomber case, called "America's Constitution" the second best book on the Constitution he had read, after the Federalist Papers. That is high praise from an outstanding District Court judge.

The books are:

Bill of Rights: Creation and Reconstruction, Akhil Reed Amar, Yale 1998

and

America's Constitution, A Biography, Akhil Reed Amar, Yale 2005.

They are in print.

If you want a reading project, these might be the thing.

[Red Violin]

Cogent historical analysis of the spirit of the law vs. the letter of the law as exploited today by petulant liberals. But why should we need Justice Scalia or any ohter laws to tell us abortions and sodomies are wrong? Shouldn't we know this viscerally and spiritually?

[Randy]

Excellent post. Excellent.

[Francis W. Porretto]

What Justice Scalia calls "form," I've been calling "process."

Since moral questions cannot be settled permanently and to everyone's satisfaction, the only enduring agreement we can really have is an agreement on how questions of law and justice are to be decided -- in other words, a constitutionally established process. The Founders clearly understood this. It's nice that at least one modern Supreme Court Justice understands it as well.