It’s fun to visit the fauxminist bizarro-world of Jezebel from time to time and find out what they’re angry about, because those things invariably make me feel great. Under an unflattering photo of Supreme Court Justice Antonin Scalia, they ran a brief passage from his recent speech to the American Enterprise Institute in which he explained that the constitutionality of certain hot-button issues is obvious:
The death penalty? Give me a break. It’s easy. Abortion? Absolutely easy. Nobody ever thought the Constitution prevented restrictions on abortion. Homosexual sodomy? Come on. For 200 years, it was criminal in every state.
Scalia making a factually accurate statement, according to Jezebel, basically makes him a big fat jerk.
Scalia is a constitutional originalist. I’ll let him explain that to you in his own words, in an excerpt from a 2005 speech:
I am one of a small number of judges, small number of anybody — judges, professors, lawyers — who are known as originalists. Our manner of interpreting the Constitution is to begin with the text, and to give that text the meaning that it bore when it was adopted by the people.
Scalia goes on to explain that originalism was once orthodoxy. Today, it is the opposite. We live today in the modern era, the era of the “living” Constitution. Why is this important for us to understand? Because it is this idea, the idea of the living Constitution, that gave us our current abortion laws. Scalia again:
… We are in the era of the evolving Constitution. And the judge can simply say, “Oh yes, the Constitution didn’t used to mean that, but it does now.” We are in the age in which not only judges, not only lawyers, but even school children have come to learn the Constitution changes.
Justice Scalia goes on to explain that step one on the road to an “evolving” Constitution was reinterpreting old laws to mean new things, such as deciding that a legal right to counsel means the state has to pay for it. But that “will only get you so far.” He goes on:
There is no text in the Constitution that you could reinterpret to create a right to abortion, for example. So you need something else. The something else is called the doctrine of “Substantive Due Process.”…
Scalia then talks about the due process clause, which guarantees that no one can be deprived of life, liberty, or property without “due process of law.” Allow me to quote from Scalia’s speech at length here, because I think it is essential to understanding where the Constitution jumped off the tracks and landed in the ditch of abortion and other cultural nightmares:
The Court said there are some liberties that are so important, that no process will suffice to take them away. Hence, substantive due process.
Now, what liberties are they? The Court will tell you. Be patient. When the doctrine of substantive due process was initially announced, it was limited in this way[:] the Court said it embraces only those liberties that are fundamental to a democratic society and rooted in the traditions of the American people.
Then we come to step three. Step three: that limitation is eliminated. Within the last 20 years, we have found to be covered by due process the right to abortion, which was so little rooted in the traditions of the American people that it was criminal for 200 years; the right to homosexual sodomy, which was so little rooted in the traditions of the American people that it was criminal for 200 years. So it is literally true, and I don’t think this is an exaggeration, that the Court has essentially liberated itself from the text of the Constitution, from the text and even from the traditions of the American people. It is up to the Court to say what is covered by substantive due process.
So what does that mean? It means, in short, that those nine robed so-and-sos have a lot of power. The Constitution, thanks to steps one, two, and three, can mean whatever the Court says it means. And to many people, this is just dandy.
What are the arguments usually made in favor of the Living Constitution? As the name of it suggests, it is a very attractive philosophy, and it’s hard to talk people out of it — the notion that the Constitution grows. The major argument is the Constitution is a living organism, it has to grow with the society that it governs or it will become brittle and snap.
Sounds reasonable, doesn’t it? So why isn’t it?
… [T]he Constitution is not a living organism for Pete’s sake; it’s a legal document, and like all legal documents, it says some things, and it doesn’t say other things. And if you think that the aficionados of the Living Constitution want to bring you flexibility, think again.
Now this part is very important to understand on the issue of abortion:
My Constitution is a very flexible Constitution. You think the death penalty is a good idea — persuade your fellow citizens and adopt it. You think it’s a bad idea — persuade them the other way and eliminate it. You want a right to abortion — create it the way most rights are created in a democratic society, persuade your fellow citizens it’s a good idea and enact it. You want the opposite — persuade them the other way. That’s flexibility. But to read either result into the Constitution is not to produce flexibility, it is to produce what a constitution is designed to produce — rigidity. Abortion, for example, is offstage, it is off the democratic stage, it is no use debating it, it is unconstitutional. I mean prohibiting it is unconstitutional; I mean it’s no use debating it anymore — now and forever, coast to coast, I guess until we amend the Constitution, which is a difficult thing. So, for whatever reason you might like the Living Constitution, don’t like it because it provides flexibility.
I can’t bring myself to take Justice Scalia’s advice. I plan to keep debating abortion. Amending the Constitution might be difficult, but I love a challenge.
Please stay tuned. In my next blog I will talk about why the “living” Constitution is dangerous.