Justice Scalia: “The Court Has Liberated Itself from the Constitution”

By: Mary Mostert, Analyst, Banner of Liberty (www.bannerofliberty.com)

April 15, 2005

A month ago, Supreme Court Justice Antonin Scalia spoke at the Woodrow Wilson International Center Justice on Constitutional Interpretation. In a nutshell he said that the Constitution is not supposed to be “interpreted.” It is supposed to mean what the document SAID in meant when written in 1787. What a novel idea!

He began his talk by pointing out the recent Roper v Simmons Supreme Court decision which found that “the evolving standards of decency that mark the progress of a maturing society” not the Constitution now “determine which punishments are so disproportionate as to be cruel and unusual.”.. This new outside-the-Constitution method of determining Constitutionality resulted in a new interpretation that the Constitution does not permit criminals under the age of 18 to be given the death penalty. Scalia pointed out that, while the media debated whether or not this new standard was a good or a bad idea that was not the question. The question is – did the text of the Constitution of 1787 which was adopted by all 13 States prohibit the execution of criminals under the age of 18? Of course, it did not. Many murderers under the age of 18 have been executed in the United States in the past 200 years.

Did the text of the Constitution of 1787 permit abortion? Of course not. So, where did the Roe v Wade decision of 1973 come from? Scalia explained it this way:

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.” Only lawyers can walk around talking about substantive process, in as much as it’s a contradiction in terms. If you referred to substantive process or procedural substance at a cocktail party, people would look at you funny. But, lawyers talk this way all the time.

What substantive due process is is quite simple — the Constitution has a Due Process Clause, which says that no person shall be deprived of life, liberty or property without due process of law. Now, what does this guarantee? Does it guarantee life, liberty or property? No, indeed! All three can be taken away. You can be fined, you can be incarcerated, you can even be executed, but not without due process of law. It’s a procedural guarantee. But the Court said, and this goes way back, in the 1920s at least, in fact the first case to do it was Dred Scott. But it became more popular in the 1920s. 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.

The Court, in effect, Scalia says has simply liberated itself from the Constitution as written. This issue is not a “liberal” versus “conservative” problem. Both groups, Scalia points out, are equally quick to grow the Constitution when it suits their political objectives. Scalia noted:

Conservatives are willing to grow the Constitution to cover their favorite causes just as liberals are, and the best example of that is two cases we announced some years ago on the same day, the same morning.

The court in Romer v. Evans, ruled that a plebiscite in which the people of Colorado had voted to amend the State Constitution to prohibit the addition of “sexual preference” to anti-discrimination laws. The Supreme Court ruled the plebiscite unconstitutional. The very next case was BMW v Gore, (not the presidential candidate) over a scratch on his new car. Gore won and was awarded compensatory damages of a couple of hundred dollars, and $2 million in punitive damages against BMW.

Scalia dissented in both cases because both involved “policy preferences,” not Constitutional issues.

The Constitution of the United States is a legal document. It is a Contract written and adopted by the American people. Yet, today, that document is not considered a legal document at all – but a LIVING document – a document that can be changed and interpreted at will by one or a handful of judges – not the people.

And, as Scalia points out, BOTH SIDES are equally in favor of “interpretation” of the Constitution, rather than abiding by what it actually says. He asks: “If you think that the Constitution is meant to reflect ‘the evolving standards of decency that mark the progress of a maturing society.’ — then why in the world would you have it interpreted by nine lawyers? What do I know about the evolving standards of decency of American society? I’m afraid to ask.”

For 200 years sodomy and abortion were evil. These days those “evolving standards of decency” have literally reversed our standards of decency. Recently I received a series of e-mails from a homosexual who claimed I was “pure evil” for writing an article that pointed out the life span of American homosexuals is 20-40 years shorter than married heterosexuals. The 44 million abortions in the past 30 years have eliminated about 30% of my grandchildren’s generation.

And, for many people – that is considered good progress towards those 21st century “standards of decency.”