In a recent article about the experiences of gay Supreme Court clerks, I came across the following paragraphs:
Justice Antonin Scalia, joined by Rehnquist and Justice Clarence Thomas, has authored some of the most caustic dissents against gay legal rights. In his dissent in Lawrence v Texas, Scalia said the majority had “signed on to the so-called homosexual agenda … directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.”
Asked last month in an interview about his dissents in past gay-rights cases, voiced from the bench as well as in his written opinions, Scalia said he was merely reading the Constitution, which he says does not cover a right to same-sex relations: “Where does it come from?” he said. “This is a trendy view of the current society elite. It’s not right to impose it on everybody else. It’s a democratic question. If you want to permit homosexual sodomy, then pass a law.”
This betrays a profound misreading of the Constitution and our most basic approach to the role of government–a misreading that Scalia himself would scorn in a different context.
One of the very few things the Tea Party folks get right is their insistence that rights precede government. Their formulation is that rights are “god-given”–I won’t go that far, but I agree with the Founders that humans have rights simply by virtue of being human, that we are born with “inalienable” rights. The Bill of Rights is a list of actions that government is forbidden to take—actions that would violate those antecedent rights.
The language in the Ninth and Tenth Amendments–amendments that Scalia the “textualist” rarely mentions–is pretty explicit on the point, providing that failure to “enumerate” a right in the preceding Amendments is not to be taken as evidence that the right was not protected. That language was included in order to calm the fears of folks like Alexander Hamilton, who argued that the government of delegated powers that the Founders had created had been given no power to infringe fundamental liberties, and worried that a written Bill of Rights would inevitably omit some important ones.
The Constitution doesn’t explicitly protect a right to have children, or a right to travel, or any number of other rights the Court has had no difficulty recognizing as protected. We would rightly consider it absurd if a Justice of the Supreme Court said something like “If you want to allow people to have children, pass a law.” A majority of the Court–unlike Scalia–understands that we don’t comb through the Constitution to find out whether government, in its infinite wisdom, has conferred a particular right on We the People.We look to the Constitution to see whether government has been given the right to interfere with a particular liberty.
And I don’t find anywhere in the Constitutional history or text where government is given the power to decide who has human rights.