Wayne Besen - Author, Activist, Columnist, Public Speaker

Wednesday, February 15, 2006

(Antonin Scalia)

Supreme Court Justice Antonin Scalia thinks I'm an "idiot." I think he is an idiot too, but the difference is, he is on the High Court and I am not. I can display a bloggers temperament, while he must display judicial temperament. In this endeavor, he has failed miserably, undermined his credibility and shown he is unquestionably unfit for the job.

In a speech Monday sponsored by the ultra-conservative Federalist Society, Scalia defended his long-held belief in sticking to the plain text of the Constitution "as it was originally written and intended." Scalia criticized those who believe in what he called the "living Constitution."

"That's the argument of flexibility and it goes something like this: The Constitution is over 200 years old and societies change. It has to change with society, like a living organism, or it will become brittle and break. But you would have to be an idiot to believe that. The Constitution is not a living organism, it is a legal document. It says something and doesn't say other things."

Proponents of the living constitution want matters to be decided "not by the people, but by the justices of the Supreme Court," Scalia added.

"They are not looking for legal flexibility, they are looking for rigidity, whether it's the right to abortion or the right to homosexual activity, they want that right to be embedded from coast to coast and to be unchangeable," he said.

First, I have a huge issue with Scalia addressing the extraordinarily partisan Federalist Society. Last time I checked, he worked for the American people, not the conservative movement. Scalia must understand that when he pledges allegiance to a particular cause, rather than the flag, he erodes trust in the entire judicial system. I would like to see Supreme Court Justices eschew speaking engagements in front of political hack groups. It creates a real or perceived conflict of interest.

Second, on the issue of the Constitution, Scalia is flat out wrong. In my column this week I addressed the issue of how his anachronistic judicial philosophy is patently absurd.

If one looks at modern conservatism in the United States, it is easy to see that it is a movement of intellectual and spiritual atrophy. In the political realm, conservatives essentially call for judges who are "strict constructionists," which is shorthand for saying "the Constitution is a dead document."

What a monumentally ridiculous notion to put forth, that American jurisprudence has not evolved in more than two centuries! Do strict constructionists believe that women and African Americans should have their rights restricted because the nation's founders treated women as second-class citizens and owned slaves?

When Scalia opens his mouth and spews such vitriol, he excludes a large number of Americans, such as myself, from the court system. Scalia made it clear that he thinks I'm an idiot, and the result is, I don't believe I could get a fair shake in front of the Supreme Court. Sure, I might win, but I would know going in that at least a few Justices - such as Scalia and Clarence Thomas - weren't even bothering to hear my arguments.

Third, it is comical that Scalia considers himself a conservative. What kind of true conservative believes the government has the right to regulate private sexual behavior - even inside one's own bedroom? Conservatives are supposed to stand for limited government. What Scalia propounds, is unlimited government, where there is no zone of privacy and Big Brother has the right to control even the most personal aspects of our lives. Scalia's philosophy is authoritarianism, masquerading as conservatism, under the guise of strict constructionism. Real conservatives should be wary of such "omnipotent government" judicial views.

Finally, people like to say that Scalia is smart and I do not disagree. However, he is not wise, which is a more important attribute for a Supreme Court justice. Lately, Scalia comes across as Zell Miller in a black robe, with a higher IQ. This is hardly the type of personality that is fit to serve on America's highest court. America needs a Justice with sharp judgment, not a judgmental judge with a sharp tongue. Scalia has badly failed the American people.

4 Comments:

I wish scalia would go hunting with dick cheney!
Gary (NJ)
posted by Anonymous, at 2/15/2006 11:03 AM

Read Scalia's dissent in Lawrence v. Texas (the sodomy case). He is by no means a "strict constructionist." He has revealed himself as a strong judicial activist with an ultra conservative agenda.
posted by Sam, at 2/15/2006 11:19 AM

Very well writen. This should be a mantra in 06 and 08.
posted by Anonymous, at 2/16/2006 10:31 AM

Interesting article. Just a few things for debate:

1. Justice Scalia came to the University of Toledo, where I study. He accepted questions from people ranging all over the left and the right. The fact that he agreed to speak for the Federalists does not speak much of anything. The Federalist Society, as opposed to the American Constitutional Society probably have much more of an interest in hearing him speak. They probably asked for him to come and he agreed. I don't think politics has anything to do with it in that regard as I highly doubt he would even BE invited to speak by an ACS organization. Would you be offended if Justice Ginsburg spoke for the ACS? I certianly would not.

2. I understand that he does have a very strong if not extreme personality. But can you show me where he specifically called liberals idiots? The fact that your article is titled this way and makes this inference may be perceived as an attempt to enrage the minds of the ignorant. He did say that you would have to be an idiot to advocate a "living document" Constitution. While not proper manners, this does not condemn liberals. Your inference that it does is an ignorant statement. Justice Scalia made it a central point in his speach at UT Law school to discuss how he chooses his clerks. One thing he said is he always looks for a liberal who happens to also to be an originalist. He said "It's a good way to keep me honest."

3. I think you misconceive of the originalist approach to the Constitution as maintained by Scalia. The Constitution of the United States is the oldest government blue print in the WORLD. Obviously, we haven't proved ourselves to be weakened by the advancement of time since the Constitution was drafted and maintained. Originalists recognize and respect the powers designated to Congress to AMEND the Constitution as they see fit. That is how they believe the Constitution adheres with the times. Therefore, one may infer that an originalist respects the addition of the amendments calling for equal protection and the right of women and minorities to vote since they have gone through the formal process of amendment corresponding to societal policy interests and demands. On the flip side, one who views the Constitution as a "living document" assumes a volatile ideal. This is so because originalists always go directly off of what the Constitution says or what the ORIGINAL drafters inferred. Scalia even stated in his speech that maintaining this ideal has led him to conflict with his own personal conservative feelings. However, people like Justice Brennan, who viewed the document as living have no structured view as to how to interpret the Constitution. This leads them into interpretting the Cnostitution as they see fit, which inherently leads to a law-making judicial branch, which happens to be UNCONSTITUTIONAL.

I do have to say that I admire your political passion and that everything I have stated is with complete respect. Thank you.
posted by Anonymous, at 4/02/2007 4:15 PM