Lost somewhere in all of the hubbub of the fact that US Supreme Court Justice Antonin Scalia invoked both Nazi Germany and Radical Islam in attacking the very institution he belongs to was this line “Who in a democratic society should have the power to determine the government’s view of what natural law is? In an open, democratic society, the people can debate these issues.”
Justice Scalia was speaking before a gathering of the Utah State Bar Association at Westin Resort in Snowmass Village earlier this month when he made those comments. During his speech, Scalia made his usual argument that he believes “that texts should be read to mean what they were understood to mean when they were adopted.” Which means that he should have voted against declaring corporations people (Citizens United), for striking down DOMA (Windsor), and for striking down the nation’s sodomy laws (Lawrence) since all three violate what the meaning behind the Constitution when it was first adopted.
Scalia either wants to retire without actually retiring so that he no longer has to do any more work by turning the Supreme Court into the Court of Last Appeal, or he just does not believe in the vision of the Founders regarding the Court. While the Constitution does not explicitly state that the Court has the right to be the arbiter of what is and is not constitutional, the Founders agreed (both Federalist and Anti-Federalists alike) agreed that the Court had that ability, but were uneasy with the idea.
Scalia, in his talk, cited a number of cases that had come to the Court including abortion rights, same-sex marriage, the society’s ability to execute someone for a crime. He claimed that judges were unqualified to answer those questions without grasping that he and the judges are not being asked about the morality of the issues, but rather the legality of them.
Scalia apparently tried to use the example of women’s right to vote as one of those issues noting that the Supreme Court was not asked to ‘interpret’ the Constitution on that issue. Of course, Scalia chose this example because there is no explicit or even implicit right to vote in the Constitution except for Blacks and women. Any attempt to get the Court or even judges to act as arbiters of who gets to vote would have been doomed to failure especially since women had so few rights, and none guaranteed under the Constitution. In fact, the courts often refused to hear cases involving women because women had no rights at the time.
Continuing in that vein, Scalia claimed that society pushed for women to have the vote and said that “We understood in 1920 that the Equal Protection Clause meant today what it meant when it was adopted. We did what the Constitution required — we adopted the 19th Amendment.” Which makes absolutely no sense.
Scalia also argued that judges should not be policy makers, but that this should be left to lawmakers and the citizens saying “I accept, for the sake of argument, that sexual orgies eliminate social tensions and ought to be encouraged. Rather, I am questioning the propriety, indeed the sanity, of having a value-laden decision such as that made for the entire society by unelected judges.”
Scalia opened up his talk with the idea that Nazi Germany “the most advanced country in the world” at the time made the mistake of allowing judges to interpret the law in ways that were intended to reflect “the spirit of the age.”
Scalia makes a huge mistake in his interpretation of history at this point. Chancellor Adolf Hitler created the Volksgerichtshof or People’s Court not to interpret the law, but to end run the traditional courts in order to get the interpretation of the law he wanted. They were not the moral arbiters that Scalia claims, but rather a means to enforce the law as the Hitler regime saw fit. Hitler created the People’s Court specifically to enforce the laws as he wanted them to be enforced, not to act as arbiters of what was and was not constitutional.
Now, back to the whole issue of ‘natural law’. If Scalia truly believes in the Constitution as it was written and intended, then many of the cases he upon which he has ruled would have had different outcomes. This is largely because the Founders had a different understanding of ‘natural law’ than Scalia does.
Under Enlightenment philosophy, ‘natural law’ was interpreted to mean those ‘inalienable rights’ such as life, liberty and the pursuit of happiness/property. This would make Scalia’s job easy. He does not have to interpret the law as per the moral value of what he is ruling upon, but rather look at it in terms of a simple rubric- does this law:
1) deny someone their life, liberty, ability to pursue happiness or property without due process? If it does, then it violates the Constitution as per the interpretation of the Founders.
2) deny someone their life, liberty, ability to pursue happiness or property through due process? If it does, then it does not violate the Constitution as per the interpretation of the Founders.
The problem is that Scalia wants to bring in something more. Specifically, he is using the bastardized form of ‘natural law’ pushed by the Roman Catholic Church. This form of ‘natural law’ attempts to combine Catholic morality with legal rights. That is, it is true, not for judges to interpret. The problem is, Scalia is pushing his Catholic morality into the legal frame as we all saw by his tantrum following the Windsor ruling gutting DOMA.
Scalia is a theocrat who must, now, step down because it is more than obvious that his Catholic morality is impairing his ability to do his job, which is to determine what is and is not legal under the Constitution.