The Associated Press reported last Friday that “Scalia Ridicules Gay Sex Ruling” at a dinner sponsored by the Intercollegiate Studies Institute. The article’s implication was that extreme right-wingers beyond closed doors were mocking–from their position far outside the mainstream–our Supreme Court’s “recent ruling legalizing gay sex.” That’s because, it would seem, conservatives think that the idea of legal gay sex is ridiculous.
Well, I attended that lecture, and Scalia didn’t say anything in private that he hasn’t said in public, in his scathing dissenting opinions. And what he ridiculed deserved, from any serious constitutional perspective, to be ridiculed. But it wasn’t the idea of legal gay sex.
AP reporter Anne Gearan observed, quite accurately, that “Scalia adopted a mocking tone to read from the Court’s June ruling that struck down state anti-sodomy laws in Texas and elsewhere.” But for some reason she decided not to quote the passage that Scalia thought deserved that tone. Here are those words penned by Justice Kennedy: “Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibility, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.”
Those words are ridiculous as a justification for the Court’s exercise of judicial review, for striking down a law passed by Congress or a state legislature. The authors of the Constitution and the Fourteenth Amendment, Justice Kennedy claims, had no “insight” into any “specific” understanding of what liberty is. They knew that they were, because of their times, necessarily blind to some of the “manifold possibilit[ies] of liberty, and so they left the meaning of the principle open. It might then be “invoked” by “later generations” as part of “their own search for greater freedom.” That means, for Justice Kennedy, that the Supreme Court has the right and duty to expand the meaning of liberty pretty much however it judges best at any particular time.
Some say that our Constitution is a reflection of the leading Framers’ indebtedness to the philosophy of John Locke, or to “the Laws of Nature and of Nature’s God” that guided Thomas Jefferson in writing the Declaration of Independence. That view, even if true, would be of little interest to Justice Kennedy. Everyone knows that all the thinkers of the past were blind to “certain truths” that our generation can so readily see. All the Framers and philosophers of old gave us was the idea of liberty, and they left the Court free to define it for our time.
The power of the Supreme Court grows over time, for Kennedy, as what once seemed “necessary and proper” now seems oppressive. The Court need only invoke the Constitution in a very abstract way in searching for ways to bestow more and more freedom upon us. Justice Kennedy’s ridiculous and shamelessly imperialistic assertion really is that the Court is in no specific way disciplined or limited by the Constitution at all.
Justice Scalia, in his dissent in the recent sodomy case (Lawrence v. Texas), does not deny or even bemoan the fact that “[s]ocial perceptions of sexual and other morality change over time.” And he notes without judgment that “homosexuals have achieved some success” in their effort to persuade their fellow Americans that “consensual homosexual acts” should be perfectly legal. He even observes that it’s true enough that laws that seem necessary and proper to one generation often seem oppressive to another. Later generations are, under our Constitution, perfectly free to repeal such laws.
But that liberty is given by the Constitution to the people, not to the Court. There is nothing in the Constitution that allows the Court to read into the Constitution views of liberty that have no specific textual support and would not have occurred to its Framers. To say otherwise would allow justices–who are by profession nothing but lawyers–to be philosophers, the sort of philosophers who pride themselves on being on the cutting edge of the spirit of their time. That means, in practice, that justices in their pride become captive, as Justice Scalia said in his lecture, “to the latest academic understanding of liberal political theory.” And the shallow and naive way they so often understand trendy theory shows their pride to be mostly vanity.
Insofar as justices turn the constitutional text into liberal or libertarian principle, they must, as Scalia complains in his dissent, “carry things to their logical conclusion.” That means, in our time, they cannot really stop at legalizing all homosexual activity, but they must move on to find a constitutional right to gay marriage, to in fact anything–even polygamy or polyandry–that consenting adults have an inclination to do. By understanding liberty as an abstract or radically individualistic principle, the Court cannot help but dissolve over time all the social institutions and moral restraints embodied in the law.
One advantage of leaving as much choice as possible about what is “necessary and proper” and what is “oppressive” to the people is that they don’t have to follow the logic of liberty or radical individualism to its conclusion. They can, Scalia observes, decide to legalize gay sex but the draw the line before gay marriage. Or they might go as far as gay marriage but leave the non-individualistic assumptions of marriage law itself in tact. The Constitution, for the most part at least, leaves it to the people to compromise between individual liberty and social or moral responsibility at any particular time.
Scalia’s constitutional view is not that the legalization of gay sex or even gay marriage is ridiculous. But he did well to mock the idea that there is anything in the Constitution that allows the Court to declare a “constitutional right” that the people are bound to accept.