The Gospel According to Scalia
Ask any "conservative" how they would want Supreme Court vacancies filled, and they'll tell you they want another "Scalia." Antonin Scalia is their model as an "originalist", one who would interpret the law based on the original intent of the Framers of the Constitution.
Scalia was interviewed on "60 Minutes" on April 26, 2008. He's an intelligent man with an impressive background. It's no surprise that he believes that "Roe v. Wade", the landmark decision protecting reproductive rights, should be overturned.
What IS surprising is his view (actually it is the truth because according to him, he is always right) about the status of the so-called "unborn child", so often the focus of the anti-choice crowd. Here is a direct quote from Scalia:
Scalia was interviewed on "60 Minutes" on April 26, 2008. He's an intelligent man with an impressive background. It's no surprise that he believes that "Roe v. Wade", the landmark decision protecting reproductive rights, should be overturned.
What IS surprising is his view (actually it is the truth because according to him, he is always right) about the status of the so-called "unborn child", so often the focus of the anti-choice crowd. Here is a direct quote from Scalia:
My job is to interpret the Constitution accurately, and indeed there are anti-abortion people who think that the Constitution requires a state to prohibit abortion. They say that the equal protection clause requires that you treat a helpless human being that’s still in the womb the way you treat other human beings.There you go. Scalia, never wrong, clearly says that an unborn fetus is not a person. Case closed.
I think that’s wrong. I think when the Constitution says that “persons are entitled to equal protection of the laws” I think it clearly means walking-around persons. You don’t count pregnant women twice. [emphasis added]
Labels: abortion, Roe v. Wade, Scalia
posted by Jim at 8:42 AM
20 Comments:
Hmmmm. It seems like there was more to that quote than what you posted.
What's missing? I quoted verbatim without ellipses.
Taken in context, the quotes mean something a bit more than what you have presented:
"The public sense of you is that [you] make your decisions based on your social beliefs," Stahl says, with Scalia shaking his head. "That is the perception."
"I'm a law-and-order guy. I mean, I confess I'm a social conservative, but it does not affect my views on cases," Scalia says. "On the abortion thing for example, if indeed I were, you know, trying to impose my own views, I would not only be opposed to Roe versus Wade, I would be in favor of the opposite view, which the anti-abortion people would like adopted, which is to interpret the Constitution to mean that a state must prohibit abortion."
Scalia says he's against that.
"It's just not in the Constitution," Stahl asks.
"There's nothing there," he says. "They did not write about that."
I'm not saying no progress. I'm saying we should progress democratically," Scalia says.
Back at the Oxford Union, Scalia told the students, "You think there ought to be a right to abortion? No problem. The Constitution says nothing about it. Create it the way most rights are created in a democratic society. Pass a law.
But my point is not whether or not Scalia is pro or anti abortion. Your "context" is exactly what I would expect from Scalia and I wouldn't argue that it isn't a logical point of view.
My point is directed at those in the "other" blog who insist that a "life" has legal rights from the moment of conception. Scalia disagrees.
I think it's more along the lines of saying that the Constitution doesn't say anything either way, so if someone wants it one way or another, they need to pass a law doing so.
I disagree. The Constitution doesn't say one way or the other about the right to abortion. It does however enumerate the rights of a "person", and Scalia clearly believes that the original intent of the framers was that a "person" is a "walking-around person[]". Thus, a fetus is not a person.
Jim, I found my way here to your spot via your post on Susannah's Get Big Ideas. Some interesting stuff here - I had never read these comments by Scalia. I consisder myself pro-choice - and I agree with Scalia that the Constitution doesn't define a fetus as human so there is no Constitutional basis to require protection via the banning of abortion. However, there are many "non-human" things that are protected by laws (bald eagles, the Grand Tetons, etc.) so I can't make the leap to agree with you that there is a Constitutional basis to federally prohibit state laws that would protect a fetus. I don't see any problem with the states making their own laws about it.
Sandy, thanks for coming.
Yes, there are non-human creatures that are protected by law. I would maintain that being protected is different from having rights. A bald eagle does not have rights. It is legally protected, but it can't own a gun or get married.
Laws can protect fetuses, but I don't think these laws eliminate the rights of the mother.
Oh, Lord have mercy, Jim. Sandy didn't say that Bald Eagles have rights! She said that they are non-human entities which are protected by law. So would be, according to the logic here, a fetus. Because a Bald Eagle cannot protect itself, it's something which we as a society have deemed precious that requires special protection under the law...
A fetus (God have mercy) is precious, cannot protect itself, & by the same logic would REQUIRE SPECIAL PROTECTION UNDER THE LAW.
We can argue it into the sewer if you would like. The fact is, humanity has been given 'dominion' (although I don't like that word) over things which cannot protect themselves, the LEAST of all should be our own flesh, blood & DNA. Human beings should have sense enough to know that a mass of protoplasm with a beating heart, a thumb to suck & DNA matching ours (in case you don't want to consider a fetus human) is more precious than a bird.
Me, oh my...this is too much for me this morning.
Well, I don't know how far we are going to get here because we have a fundamental, unsolvable difference of opinion on whether abortion should be legal. Neither of us will convince the other to change opinions.
That said, without trying to put too fine a point on it, there is nothing in the law or the constitution that "requires" creating laws for the protection of bald eagles. People and their lawmakers make a judgment as to whether such protection provides a greater good than the alternative.
I would maintain the same for fetuses. There is no "requirement" that dictates a fetus must be protected. It is a moral judgment whether or not to do so. And this judgment is based on whether that protection, and the administration of that protection provides a greater good than the alternative.
I believe that abortion should be safe, legal, and rare. I believe that banning all abortions does NOT provide a greater good than the alternative.
Hmmm...I suppose in my last comment I was arguing more of the morality of the question than the legality of it...I didn't say that it shouldn't be legal. So there goes that unsolvable difference of opinion.
What you said about safe, legal & rare is admirable. Since it has become law, it's safe & legal, but NOT rare. The "right" that women claim is NOT in the Bill of Rights, so there goes the Constitutional issue (ok, argue if you want).
IMO (morally), the "right to life" of an unborn baby supercedes the "freedom of choice" of any person who has been given the privilege of carrying that life into the world. Again, argue if you want.
Here's the problem...Though I personally am anti-abortion, I do not contend that the procedure should be outlawed. (I won't/can't go as far as Sandy & say I'm pro-choice.) My biggest problem w/ the legality of it is HOW it became legal - through Judicial activism. It should NEVER have become law at the Supreme Court. Laws are not to be created in the Judiciary, they are to be created in the Legislature. The PEOPLE should have been given a chance to VOTE for legislators (or even on a ballot measure) in their own STATES who could have thereby passed laws in each STATE. Rather, activists went through the Judiciary in order to bypass the People (b/c perhaps the People would've voted it down??). Very sneaky - it's the same thing that the gay marriage crowd is doing.
I like Cameron's input on Scalia's quote, "You think there ought to be a right to abortion? No problem. The Constitution says nothing about it. Create it the way most rights are created in a democratic society. Pass a law."
BINGO!
(Why not change your settings such that people are notified by email when an additional comment is added...? It would save you the trouble of coming back to each individual site to inform people of a waiting comment. --- Not that I mind the visit, but it would be less cumbersome for you. Just sayin'...)
OK, let's see here:
"The 'right' that women claim is NOT in the Bill of Rights, so there goes the Constitutional issue"
There is no right to drive or get married or buy a dog either. The court declared that there is a right to privacy that is the relevant principle. The court makes many decisions and most are not unanimous, but that is how it works according to the constitution.
Your opinion is totally valid. It is not mine. It is not the opinion of many, many people in this country. It is not the opinion of the Supreme Court.
"My biggest problem w/ the legality of it is HOW it became legal - through Judicial activism...Laws are not to be created in the Judiciary, they are to be created in the Legislature."
Sorry, but this argument doesn't cut it. Legislatures create laws, but the Constitution grants rights. The court determines if laws conform to the Constitution. It is OK if a legislature votes to ban hand guns in your state? Or should the Court say that is contrary to the Second Amendment?
FYI, Clarence Thomas is the most activist judge on the Court. He has voted to "overturn" more legislation than any sitting justice.
Gays are going to the courts because they believe, as do I, that gay marriage is a matter of equal protection. This is a judicial matter, not a legislative one.
(I can't find a setting to send you an email. I'd be happy for a lesson.)
Jim, I don't know what change you made in your settings, but I'm receiving email notifications of your comments now. That makes things easier, doesn't it? :)
Hi Jim~ I'm back.
you said - "Sorry, but this argument doesn't cut it. Legislatures create laws, but the Constitution grants rights. The court determines if laws conform to the Constitution. It is OK if a legislature votes to ban hand guns in your state? Or should the Court say that is contrary to the Second Amendment?"
Of course, 2nd Amend. people would challenge this in the Supr. Court, & rightly so, b/c it already exists as a 'right.'
"Clarence Thomas is the most activist judge on the Court. He has voted to 'overturn' more legislation than any sitting justice." Key word here is "overturn". You've made my point exactly - albeit through the back door. See, anything you say that Thomas has 'overturned' has already made the legal trek through the legislative process (therefore, legislative reps. of the PEOPLE have been allowed to act), & has received a challenge, to be decided by the courts. This is how it's SUPPOSED to work, not the other way around - such as Roe v. Wade. That's my point - no representation, no legislative process to make this the Law of the Land. I b'lieve my argument 'cuts it' just fine...
"Gays are going to the courts because they believe, as do I, that gay marriage is a matter of equal protection. This is a judicial matter, not a legislative one."
Sorry Jim, this is not a valid argument. Gay people can get married any time they want to - it's their absolute LEGAL RIGHT to do so, & receive the "equal protection" which is due legally married people. They have just as much legal access to marriage as you/I do. Nobody's denying them that.
Marriage is between one man/one woman. Period.
Go ahead, folks, get married! It's your right!
Marriage is between 1 man/1 woman.
...and how dare they try to redefine this foundational institutuion for their own convenience, attempting to align themselves w/ the Civil Rights mvmt?
(This thing really gets my dander up...The arrogance of it is astounding, imo.)
The Supreme Court has NEVER made a law. They have only declared legislation unconstitutional. The Court did not pass a law to make abortion legal. They declared that laws banning abortion were unconstitutional. That's not judicial activism.
Judicial activism is your judge didn't rule in my favor. Thomas has done exactly the same thing, ruling against legislation.
You are saying, "If I don't like legislation, it's OK for the Court to overturn it. If I like the legislation and the Court overturns it, that's judicial activism."
"Marriage is between one man/one woman. Period."
That's fine if that's the way your church want's to define marriage. I believe that churches can perform marriage ceremonies however they like. But when it comes to legal rights, the church does not have the authority to grant who can have them and who can't.
"The Supreme Court has NEVER made a law."
Yes, thank you, I know that. They should never have taken the case. They should have remanded it back to the States to decide. Instead, they forced States to adhere to RvW w/o legislators/people ever having a 'say' in whether they'd like to take part in it.
Now that I think about it, Judicial activism is a collaborative effort on the part of agenda-minded groups who hand-pick jurisdictions sympathetic to their cause. Then, the justices seal the fate by giving their stamp of approval. No, the Supreme court didn't make a law, they just superceded States' rights to create their own on the matter.
Marriage is still between 1 man/1 woman. If a gay couple wants/needs civil benefits, fine. Allow 'partnerships' or whatever (I don't "like" it, but I can go along w/ it. See? I'm not as rigid as you might think, dear Jim.)
Marriage is marriage, see? And it's between 1 man/1 woman. Period.
That's all I have to say about that, & I ain't budgin'! :)
Very interesting debate going on here! My take is pretty much square in the middle of you two. While I am scared of the thought of a world where a woman can't get a safe and legal 1st trimester abortion, I would agree with Susannah that Roe v Wade was judicial activism. Here is my logic on that: the Constitution absolutely guarantees a right to life (and liberty and a pursuit of happiness...). It also guarantees the right to be equally protected under the law. Some people think that from conception a fetus is a human life with the constitutional right to not be murdered - just like any other human. And some states had laws enforcing that point of view. Others challenged those laws which to them protected a non-human bundle of nerve tissue that doesn't really have ANY constitutional rights at the expense of a fully developed, rational, walking around, undeniable human being who does have a constitutional right of equal protection under the law. But doesn't it REALLY boil down to one's definition of life? While a woman's right to privacy seems a stretch of the constitutional right of equal protection, the right to life is inarguable. There is no equivalency of life to privacy. Life wins. Hands down. Every time. So it seems to me that a majority of the judges just didn't believe that life begins at conception and so they trumped the laws of the states whose citizens thought differently. While I might agree with the point of view of the judges on THIS case, I find it a frightening prospect that these few individuals can manipulate the laws in this manner. Next time, their decision may be contrary to what I believe, what my state has legally enforced, what I wholeheartedly believe are MY constitutional rights. I don't think that's their job. Unfortunately, many of them do - including the current President.
Sandy said, "[T]he Constitution absolutely guarantees a right to life (and liberty and a pursuit of happiness...)".
Actually, it does not. This phrase comes from the Declaration of Independence which establishes no laws and grants no rights. It does declare that there are inalienable rights, but it does not say who gets them except "all men."
"It also guarantees the right to be equally protected under the law."
Well the 14th amendment of the Constitution does, yes.
"Some people think that from conception a fetus is a human life with the constitutional right to not be murdered."
Some people do; many do not, including Justice Antonin Scalia. (see original post). I do not.
"But doesn't it REALLY boil down to one's definition of life?"
Nope. I would not argue against the assertion that "life" begins at conception. I'll stipulate that is does.
However, I would argue against the assertion that civil rights or equal protection begin at conception.
And Justice Scalia agrees.
So your argument that an "activist" Court has given preference to a woman's right to privacy over the "right to life" of a fetus fails, because the Constitution does not confer a right to life upon the unborn.
You may not like the way the Court ruled in Roe v. Wade, but it was a majority decision (by definition) and there is precedent for the conclusion that the Constitution and its amendments guarantee a right to privacy.
I read an interesting article from the University of Missouri which included the following:
"The U. S. Constitution contains no express right to privacy. The Bill of Rights, however, reflects the concern of James Madison and other framers for protecting specific aspects of privacy, such as the privacy of beliefs (1st Amendment), privacy of the home against demands that it be used to house soldiers (3rd Amendment), privacy of the person and possessions as against unreasonable searches (4th Amendment), and the 5th Amendment's privilege against self-incrimination, which provides protection for the privacy of personal information. In addition, the Ninth Amendment states that the "enumeration of certain rights" in the Bill of Rights "shall not be construed to deny or disparage other rights retained by the people." The meaning of the Ninth Amendment is elusive, but some persons (including Justice Goldberg in his Griswold concurrence) have interpreted the Ninth Amendment as justification for broadly reading the Bill of Rights to protect privacy in ways not specifically provided in the first eight amendments."
"The Supreme Court, however, beginning as early as 1923 and continuing through its recent decisions, has broadly read the "liberty" guarantee of the Fourteenth Amendment to guarantee a fairly broad right of privacy that has come to encompass decisions about child rearing, procreation, marriage, and termination of medical treatment. Polls show most Americans support this broader reading of the Constitution."
There are several cases cited in this article that demonstrate that the Court enumerated a right to privacy long before Roe.
I return to the term "activist judges." These are judges who rule against legislation you support. Thomas has overruled more legislation than any other sitting justice. I hardly think you would consider him an "activist judge."
Now, now. I admit, I am not an attorney and I did not have my facts straight on the constitutional "rights" of life, liberty, etc. But I still stick with my general reasoning.
I'll say it another way: If the majority of the citizens of a state believe that a fetus does have constitutional civil rights from conception, that state should absolutely have the authority to pass laws protecting that fetus. I just don't buy that a panel of reasonable judges, other than those with an activist agenda (those who believe like you and I that a fetus doesn't have constitutional rights - and are so sure they are correct that they are committed to enforcing their view on everyone else in the land), could find otherwise.
But what I REALLY take exception to is your following comment:
"I return to the term "activist judges." These are judges who rule against legislation you support. Thomas has overruled more legislation than any other sitting justice. I hardly think you would consider him an "activist judge."
Nope. Judicial activism is a philosophy advocating that judges should reach beyond the Constitution to achieve results that are consistent with their own, personal values. So whether or not those values coincide with my own, I am always against activism.
You are correct that I don't consider Scalia an activist judge. He may have overturned more legislation than any other judge but he did so b/c he was overturning unconstitutional legislation created by ACTIVIST judges.
I can see that you are committed to your beliefs and I applaud that. But in my humble opinion, judicial activism is a dangerous, perilous road. Perhaps you are ok with it because activist judges overwhelmingly tend to be for liberal causes and that is what YOU support. But that doesn't make it right.
Sandy,
Thanks for continuing the discussion.
You said, "I'll say it another way: If the majority of the citizens of a state believe that a fetus does have constitutional civil rights from conception, that state should absolutely have the authority to pass laws protecting that fetus."
Sure they do. They can pass it, and if the majority believes that only blue-eyed people can drive a car, they can pass that, too. But any court will overturn the blue-eyed law because it denies equal protection. And if the court rules that there is a right to privacy (and it has several times), and the court believes that right is infringed upon by the state legislation, then they can and must overturn it.
That's not activism; that's judicial review.
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