Tag Archives: Scalia

Scalia’s Morality

As has been widely reported, Justice Antonin Scalia made a controversial–albeit illuminating–remark on Monday, during a speech at Princeton. In response to a student who asked him about previous anti-gay writings in which he had compared laws criminalizing homosexuality to those banning bestiality and murder, Scalia defended the comparison, saying that–while he wasn’t equating homosexuality with murder–it illustrated his belief that legislative bodies should be able to enact laws against “immoral” behaviors.

I am deathly tired of legislators and judges who define “morality” exclusively by what happens below the waist, and who confuse “tradition” with a moral compass.

Throughout his career, Scalia has devoted his undeniable brilliance not to an exploration of the human condition, the nature of morality or even the role of law in society, but rather to the creation of an elaborate intellectual defense of his prejudices.

Anyone who would equate sexual orientation–an identity–with murder–a behavior–fails Classification 101. It can never be immoral simply to be something: gay, female, black, whatever. Morality by definition is right behavior. And most moral philosophers begin that examination by asking a fairly simple question: does this behavior harm another?

Now, I know there are endless (legitimate) arguments about the nature of “harm,” but–Micah Clark and Eric Miller to the contrary–the mere fact that gay people exist and may be granted equal civil rights cannot be rationally considered harmful.

How moral we are depends upon how we treat each other. Sexual molestation is wrong whether the molester is gay or straight. Theft is wrong irrespective of the color, religion or sexual orientation of the thief.

And as many others have noted, tradition is hardly a reliable guide to moral behavior. Quite the opposite, really. War has been a human tradition. Slavery was traditional for generations. The submission of women lasted eons. The loss of these “traditions” is hardly a victory for immorality–although for old white guys like Scalia, I’m sure the loss of privileged status is cause for regret.

The job of legislatures is to pass measures needed by governing bodies–rules for civic order, taxation, service delivery, and the myriad other matters that may properly be decided communally. Allowing legislators to decide whose lives are moral is not only improper, not only an abuse of power, it is itself immoral.

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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 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.

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Understanding Scalia

Eric Vieth at Dangerous Intersections has a fascinating–and chilling–review of Antonin Scalia’s position on executing people who are proved innocent after being convicted in a “fair” trial.  Hint: “they probably did something wrong anyway…”