Getting It Backward

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┬áhas 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.


  1. While I find Justice Scalia’s approach to interpretation flawed in many respects, and vehemently disagree with most of his conclusions, don’t we still have the problem of figuring out what those pre-existing human rights are?

  2. I believe God’s greatest gift is free will. Anything that interferes with an individual’s free will is a violation of that person’s rights. I would this as a basis for determining “human rights”.

  3. Thomas should not be sitting on the Supereme Court in the first place; his morals and values are low to non-existent. He refuses to state his reasons pro or con on his decisions. Scalia does state his reasons, even when they are flawed. The Constitution does not rule our sex lives any more than it rules our religous rights or our morals in general. Having used the Bible as the primary objection against same-sex marriage and continually stating homosexuality is a sin – they should read the Bible. If they do, they will discover homosexuality is considered an abomination which translates to any action which may be distasteful or ugly to some people. All of these politicians need to get out of our beds and leave decisions about our most private moments to us. With so many of them being caught on the wrong side of the sheets; they need to govern their own private lives – we leave them alone unless and until they break the law. Scalia needs to understand he was not appointed God; he was appointed to the Supreme Court for partisan political reasons only.

  4. Don is exactly right. The problem with reading the 9th Amendment as broadly as Sheila wants to – it hands judges, usually unelected federal judges, a blank check to fill in whatever rights they want to create. Where are the limits on that power? There wouldn’t be any. The judicial branch would usurp the legislative branch, and judges would be super legislators.

    I have the same argument with an attorney friend of mine. I could never pin him down on how we know what rights are protected by his expansive reading of the 9th Amendment. He never could provide me a concrete answer. Finally, he said he “would know when he sees them” what rights are protected by the 9th Amendment. Not much of an ideological framework for interpreting law.

  5. I should say that “it hands judges, usually unelected federal judges, a blank check to fill in whatever rights they DEEM IS PROTECTED BY THE NINTH AMENDMENT.” Sloppy language.

  6. Joann, the passage in the bible that mentions homosexuality can be found in Leviticus. However, the translated version I read states that “no man shall have sexual relations with another man”. It does not mention women and is really quite vague, I guess the author left it up to the follower on how to interpret homosexual conduct. But yes the constitution can not regulate homosexual activity between private individuals. A persons sex life is their business as well as their own free will and choice.

Comments are closed.