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Wednesday, July 01, 2015

Scalia's Anti-Enlightenment Anti-Individualism

Conservatives warn that the so-called liberals on the Supreme Court endanger our liberties. This is certainly true, although not exactly as the conservatives mean it. Now it’s time for them to acknowledge that the court's conservatives do the same.

Case in point: Justice Antonin Scalia’s dissent in Obergefell v. Hodges (PDF), the case that declared state laws forbidding legal recognition of same-sex marriages unconstitutional. Scalia’s opinion is worth examining apart from the particulars of Obergefell. As he points out -- let’s take him at his word -- what he objects to in Justice Anthony Kennedy’s majority opinion has nothing to do with same-sex marriage per se. What concerns him is not the content of the opinion but the activity the majority engaged in to arrive at it.

As he writes at the very top:
...It is not of special importance to me what the law says about marriage. It is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court.
Specifically, he laments “the Court’s claimed power to create ‘liberties’ that the Constitution and its Amendments neglect to mention.”

This is a powerful clue to Scalia’s philosophy, which conservatives either embrace or ignore. In Scalia's view we have only the liberties mentioned in the Constitution and its amendments, and those are the only liberties the Supreme Court should concern itself with. This view would be worrisome even if among those amendments we did not find number nine, which states,
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
To quote Rick Perry, “Oops.” I guess he forgot.

When the court "creates" rights not expressly mentioned, Scalia says, it “robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.”

If you think that self-government means that each person is free to govern himself or herself and that the protection of rights and equality under the law serve that end -- Scalia says you're wrong.

He is sad that court's ruling ended the same-sex marriage debate -- a “display [of] American democracy at its best.”
Americans considered the arguments and put the question to a vote. The electorates of 11 States, either directly or through their representatives, chose to expand the traditional definition of marriage. Many more decided not to. Win or lose, advocates for both sides continued pressing their cases, secure in the knowledge that an electoral loss can be negated by a later electoral win. That is exactly how our system of government is supposed to work.
To be sure, he says, the Constitution and its amendments limit such “self-rule”:
Forbidden are laws “impairing the Obligation of Contracts,” denying “Full Faith and Credit” to the “public Acts” of other States, prohibiting the free exercise of religion, abridging the freedom of speech, infringing the right to keep and bear arms, authorizing unreasonable searches and seizures, and so forth. 
That pesky Ninth Amendment is left out again.

“Aside from these limitations,” he continues, “those powers ‘reserved to the States respectively, or to the people’ can be exercised as the States or the People desire." (My emphasis.)

The collectivist manner in which Scalia defines self-rule reminds me of classical-liberal Benjamin Constant’s distinction between the liberty of the ancients and the liberty of the moderns:
The aim of the ancients was the sharing of social power among the citizens of the same fatherland: this is what they called liberty. The aim of the moderns is the enjoyment of security in private pleasures; and they call liberty the guarantees accorded by institutions to these pleasures.
Scalia has the mind of an ancient. It’s odd that Scalia regards himself as a defender of the founders’ vision when the founders (despite their faults) regarded themselves as men of the Enlightenment.

One need not embrace Kennedy’s opinion in all its particulars to see that Scalia’s ancient philosophy is as much a danger to liberty as anything the so-called liberals might come up with.


N. Joseph Potts said...

IS it "ruling" to do away with a law(s)? In a sense, yes (the law is forbidden to be made/enforced). But at a more-basic level, the nullification of laws TENDS to increase liberty for PEOPLE, if not their (state) governments.

Scalia doth complain too much, at least in this case.

Anonymous said...

This article puts a lot of emphasis on the 9th Amendment as a reason for repealing the Constitutional Amendments of many State Constitutions. However, what I feel the article forgot about is that "pesky" 10th Amendment:

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

Now I know the use of the word "State" there now means "Federal" due to the recent ObamaCare ruling. However, I assure you that back when it was originally put in by the Founding Fathers state meant state, and so it WOULD be up to the States to decide recognition of gay marriage, since marriage was always a State action anyway ("By the power vested in my by the State of _____ I now pronounce you...").

In contrast, I believe Scalia was legitimately trying to warn us how far out of wack our system has gotten. We no longer follow the Constitution anymore, it's not good enough for people. They need more rights, more freedoms, more money out of your pocket to enforce all that stuff. 5 unelected people on the Supreme Court just eliminated many Constitutional Amendments put there by popular vote and support of the people. That is a serious problem, and it creates a terribly powerful precedent.

Now don't get me wrong, I do agree with gay rights. However, I also agree with the democratic experiment. If we are a country based in law then we ought to follow the procedures and laws that we ourselves put forth. The gay rights movement did not do it with this one, and I lost a lot of respect for them as a result. They constantly compared their struggle to the black civil rights movement, but obviously it isn't even close. Black people won their rights in the legislature and with the people. Despite the news reports that say people "overwhelmingly support" gay marriage they didn't seem to win many elections. In fact, without judicial activism most states would still not allow gay marriage. When Scalia was commenting about how "this IS how democracy works" when he was referring to the debate, he was right. And now because of the actions of 5 people we may never know if gay people could be accepted with respect instead of forcing you to accept them at the point of a gun (and/or lawsuit if you own a wedding related business).

Anonymous said...

This blog entry misses the question Scalia was responding to, and so it not only misunderstands what Scalia said, but it itself makes the error it accuses of Scalia.

The question before the court was not whether people could get married. None of the plaintiffs were prevented from being married. The question before the court was whether the plaintiffs could FORCE THE STATE to recognize their marriages. It wasn't a question of preventing the states' actions but rather a question of forcing the states to act.

So Scalia was SUPPORTING freedom when he objected to restricting the states' policies of action. Scalia was agreeing with these ideas of self-government, not saying they were wrong. He was supporting the right of people to do what they wished so long as they didn't interfere with others' abilities to do the same.

It all comes down to misunderstanding of what was actually before the court. The story that states were preventing marriage is factually wrong, so perceptions based on that claim themselves end up 180 degrees out of phase.

Sheldon Richman said...

"what I feel the article forgot about is that "pesky" 10th Amendment:"

Is it of no consequence that the 14th Amendment came after the 10th?

Sheldon Richman said...

"The question before the court was whether the plaintiffs could FORCE THE STATE to recognize their marriages."

No, the questions, per the 14th Amendment, were whether the states can deprive persons of liberty without due process of law and whether they can deny persons equal protection of the law.

Of course the states were preventing marriage, as people understand that word, i.e., a commitment recognized through a state marriage license. What's more, they would not recognize and enforce private marriage contracts.