Face It: Antonin Scalia Is Just a Bigot in a Black Robe

Guest post by Eric Zuesse

Preface by Washington’s Blog: Whatever you think of gays or gay rights, Mr. Zuesse makes an interesting argument about inherent liberties under the Constitution.

During oral arguments on Tuesday, March 26th, concerning the right of homosexuals to marry as they see fit, Justice (if that word is appropriate for) Antonin Scalia asked attorney Ted Olson, who was arguing in favor of that right, “When did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868? When the 14th Amendment was adopted?”

Olson answered with a sequence of questions of his own: “When did it become unconstitutional to prohibit interracial marriages? When did it become unconstitutional to assign children to separate schools?”

The two sparred back and forth. Olson concluded: “There’s no specific date in time. This is an evolutionary cycle.”

Of course, that answer – essentially the “living constitution” theory of interpreting the Constitution – couldn’t possibly have gone over very well with Scalia, who has always (and passionately) rejected it.

Olson’s answer was evasive. A good answer was available to him, but he unfortunately failed to use it.

This answer would have been along these lines:

“Your assumption seems to be that the Constitution starts with the presumption that rights do not exist unless they are stated in the Constitution.

But that’s a false presumption about our Constitution. This nation’s Constitution starts instead with the presumption that nothing is prohibited unless laws that adhere to our Constitution prohibit it.

This Constitution starts with the presumption not of personal bondage, such as you seem to imply, but of personal freedom.

This Constitution never prohibited anyone from marrying whomever that person wants to marry, so long as that other person wants it also – i.e., so long as it is mutually voluntary (which entails additionally a person’s capacity to make such a decision – i.e., laws barring children from marrying are not unconstitutional).

It was never unconstitutional for either heterosexuals or homosexuals to marry as they wish. Any laws to the contrary were always unconstitutional; and we respectfully submit to you that the sooner that this Court acknowledges this fact about our Constitution, and the sooner that it brings existing laws into accord with the Equal Protection Clause – which makes it doubly so – the better it will be for everyone.”

Of course, Scalia could then have challenged Olson with a follow-up question, such as, “Then, why do we have enumerated rights in the Constitution; why did the Founders even include any Bill of Rights at all?” And Olson could well have answered him: “Because they wanted to make especially clear that those are rights that are not only allowed, but required – that the government must never violate the people’s rights in those matters, under any circumstances whatsoever. Again: only the government is restricted; the people are free and can be restrained only by laws that fall within the government’s scope.

Nowhere does our Constitution assert, such as you assume, that only rights that are enumerated are protected. Instead, it restricts only what the government itself may lawfully do – never what a citizen may do. Our Constitution doesn’t do that, at all. It instead establishes a legal framework within which the scope of the government’s allowable restraints upon the people (i.e., of its Constitutionally permissible laws) is clearly set forth, and in which all laws that would lie outside that restricted scope are simply prohibited to this government.”

That would have been an intelligent response by Olson.

Ted Olson just isn’t that bright. But neither is Antonin Scalia.

When Scalia faced the attorney, Charles Cooper, who represented the proponents of banning gay-marriage, Scalia failed to ask him “When did it become constitutional to exclude homosexual couples from marriage?” Scalia’s prejudice was blatant there. He even volunteered that perhaps homosexuals shouldn’t be permitted to raise children, saying, “that’s a possible deleterious effect, isn’t it?” Cooper eagerly followed Scalia’s lead, by saying: “It is the Respondents’ responsibility to prove … that there will be no harm.” Scalia agreed; in other words: he accepted Cooper’s saying that the burden of proof should lie with Olson on this: proponents of individual rights need to prove their case; proponents of state-power denying those rights do not.

Scalia is an unreformed bigot, who tries to find his bigotry to be in the Constitution. At least Olson isn’t that. At least Olson knows it’s not there (and hasn’t been there at all since slavery was abolished); but he doesn’t know that it never was there. No form of bigotry actually ever was (except, again, for slavery).

Scalia enforces a Constitution that he imagines, but that never really existed. He is ideologically alien to the Constitution that he is oath-bound to enforce.

This country is ruled by people who are well-connected; it’s not ruled by people who are bright – nor even, necessarily, good.

Sad, but true. That’s just the way it is.

There are bigots, but our Constitution (since 1870) has been devoid of bigotry.

The case that was being discussed in oral arguments on March 26th (Hollingsworth v. Perry), concerned not whether the Court may make this form of bigotry unconstitutional, but instead whether it will terminate a form of bigotry that never was in the Constitution, and that has been outright banned by the Constitution since the 14th Amendment in 1868. Neither Scalia nor Olsen knew this.

———-

Investigative historian Eric Zuesse is the author, most recently, of They’re Not Even Close: The Democratic vs. Republican Economic Records, 1910-2010, and of CHRIST’S VENTRILOQUISTS: The Event that Created Christianity.

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  • http://twitter.com/CharliePrimero Charlie Primero

    Interesting read. Thanks.

  • nveric

    OK, but this issue same-sex marriage is very, very, very, very, very low in importance or worth or value and does not concern me much at all.

    Now as to the Constitution and rights and law, since I just woke up and the coffee is not yet restraining me enough, I’ll say this, which has nothing whatsoever to do with marriage:

    Screw the people or any person who plays what seems to be a game with our lives. The legal system in the USA sucks, or at least how it’s practiced. Our laws, derived through the centuries, is one of bull-excrement when winning supplants truth and guilt.

    Screw the people who screw the People who want to work but are denied so by constricting the money supply and maintain the money supply to maximize profits for themselves. Money is not real to begin with. How the fornication can any economic system get started when money is not real? Money ONLY represents labor, which is time spent doing something. In the beginning there was no money, but somewhere, some-when, it was decided, by someone to say this stuff is money and can be used to do things with instead of us all bartering or sitting around doing nothing.

    My county government is reducing services, none that I use or depend on or even know about, because they have around a million dollar shortage from lost revenue in property taxes and so forth. 15%+ unemployment in this rural county could be working on things needed to be done, but there’s none of this stuff called money.

    People need each other directly or not to live. There’s work to be done, and the accumulation of labor is being hoarded by people who DID NOT earn or work for it, but rather connived, swindled, or stole it. A person’s time and worth are the same as any other in our society, for the most part. We derive the same as we can only give the same, for the most part. Creating these false compensation schemes, to inflate and disrupt the natural order – that of equal work receives equal pay – creates these un-natural outcomes.

    Clarity can be found in the above, somewhere.

  • stevenovak

    bigotry existed in the constitution until women were permitted to vote.

    • Mavent

      You are completely wrong. The Constitution never prohibited women from voting. That’s the point of the friggin’ article Under the Constitution, women ALWAYS had the right to vote, because it is based on the assumption of equal rights for all. The shame of America is that we had to go back and spell out certain Rights that should have been obvious from the first. And by the way, the 19th Amendment doesn’t “give” women the right to vote. It merely states the obvious: that States can’t deny American Citizens voting rights based on sex.

      • nveric

        Yes, you’re correct. Not until the 14th amendment was gender mentioned in the Constitution.

        It WAS a SEXLESS document. Voting has always been a local/state function.

      • Psiload

        You’re both wrong. It definitely wasn’t bigotry that women weren’t allowed to vote in era that the Constitution was created and there was no misinterpretation of women ALWAYS having the right to vote. To stevenovak: At the time the Constitution was created
        it was revolutionary in the extreme that small landholders were given the right to
        vote because everywhere else in the world in THAT ERA only gentry classes could vote. To Mavent: Women did not have the right to vote under the Constitution. If women ALWAYS had the right to vote as you say… then they would have voted. If women’s voting rights “should have been obvious from the first” then the Women’s Rights Movement would not have had to take place in America through the early 20th century. Yes… women were GIVEN the right to vote in this time period because they definitely did not have the right beforehand. It’s only “obvious” that the right to vote doesn’t discriminate based on race, gender… etc. now because today we live under the assumption that nobody should be denied the right to vote.

        • nveric

          Tradition kept women from voting.

          The Constitution gives no one their rights. Rights, we are born with. This is the only legitimate view of Rights for the World’s population. People are born this way.

          All of them are held in us, but have allowed some of these rights ( involuntarily, but that’s another issue ) to be loaned to our governments so they can exercise them for us.

    • nveric

      The Constitution of the US is to LIMIT the federal government. This is its main purpose. It’s a restraining order. It’s been severely violated too.

      • Guest

        Not true. There are parts of the constitution that limit federal power, but the whole reason we needed this constitution as opposed to the Articles of the Confederation, was to create a strong central government with power over the States.

        • nveric

          Yes, but it’s purpose was and is to place limits on the federal government too. As we can see, it’s failed in restraining that government.

          Yes, many wanted a stronger central government and for good reasons, but they wanted that strength contained by the Constitution, which is why it states what the federal government can do. Constitutions in the US are there to state what can be done and only can be done, that’s their supposed purpose. But within 10 years, hope was lost with the Alien and Sedition Acts.

          Expectations of self-restraint and doing the right thing were never given their certainty by way of greater security in a stronger final check. Such a final check, a generational renewal of the Constitution was not thought of. The People must agree on a continual basis for any government to be valid. We, of today, must demand this and I’ve written an amendment to the effect of a vote every 18 years. Without our approval and consent, we are subjects born into an unchallengeable system not of our making. Stability requires certain tests to maintain balance and adjustments to make it so.

          The debate over the strength of this new central government is an ongoing one, but clearly the strength is continually is gaining. They take the 9th and 10th amendments to mean anything not yet made unlawful, the opposite of the intent and meaning of them.

          It’s worthwhile to read the notes of the convention, and personal letters of those people.

  • Lex

    Can someone explain to me how government sanctioned marriage is a right? I think homosexuals would have more success and sympathy if they changed their argument to: “We demand the State let us acquire a marriage license”. It would accomplish the same thing.

  • BenTheGuy

    Yeah, I call everyone who disagrees with me a bigot, too.

    • http://www.facebook.com/john.trujillo.925 John Trujillo

      I call everyone a bigot who tries to deny basic human rights to other people.

  • ebk

    ““Because they wanted to make especially clear that those are rights that
    are not only allowed, but required – that the government must never
    violate the people’s rights in those matters, under any circumstances
    whatsoever. Again: only the government is restricted; the people are
    free and can be restrained only by laws that fall within the
    government’s scope.”

    That would be a good response. All this outrage on issues of the 10th and 14th amendments, but I don’t see a similar level of rage at attempts to limit our second amendment rights. If you want to defend one amendment, you have to defend them all. You cannot pick and choose.

  • zekorki

    Butt holes were made for pooping.

    Nothing was said about two guys or two women marrying in the past because society still had some order to it and nobody dreamed there would be a time of such corruption as our present times. Everyone knows that marriage originated for women and men and to create stability for societies.

    The next deviance they will be making legal is pedophilia and polygamy (which already have backers). The Anything-goes-cultures further erode and destabilize fragile nations and communities.

    Gay marriage has been constantly preached and numbers fudged to make it look like everyone is doing it…like its some big fad to go stick your stick in a poop hole. Hey if guys and gals want to do this that is fine by me…but don’t expect us to accept it as “normal” behavior.

    • John Doe

      “Everyone knows that marriage originated for women and men and to create stability for societies.” This is patently false. The Bible actually recognizes 5 kinds of marriages including polygamy, marriage between rapist and victim etc. Are you claiming all of these other kinds of marriages are somehow invalid today from the Bible except the one that bigots conveniently latch on to?

      Also if you claim “butt holes are made for pooping”, I suppose you would also be OK with passing laws making fellatio illegal?

      • zekorki

        whats the bible gotta do with it?

    • jjt

      You don’t have to accept marriage equality. You don’t even have to like it. But you will tolerate it, just as decent people will continue to tolerate people like you.

  • motto

    Ironic you should say this: “This Constitution starts with the presumption not of personal bondage, such as you seem to imply, but of personal freedom.”

    Remember: the Constitution institutionalized slavery.

    • nveric

      Not exactly, it was ignored, because it was a states issue. People will argue this and its OK, however, the makers of the Constitution failed to act responsibly enough. There was no valid reason to let slavery continue. Intestinal fortitude was lacking.

  • motto

    Ironic you should say this: “This Constitution starts with the presumption not of personal bondage, such as you seem to imply, but of personal freedom.”

    Remember: the Constitution institutionalized slavery.

  • http://www.facebook.com/steve.mcmackin Steve McMackin

    I’m not saying Olson perfectly answered the question (although his rhetorical comeback was brilliant), but you undermined this entire post with the pointless and inaccurate barb, “Ted Olson just isn’t that bright.”

    • http://www.facebook.com/chiaravalloti Nathan Chiaravalloti

      I agree completely. What was otherwise a smart and thoughtful piece was totally undermined by that bit of foolishness. I can almost guarantee the author has never argued before SCOTUS, because if he had, he would realize how difficult it can be. Too bad, I almost shared this.

      • Samuel Stattenberg

        That’s how TPTB keep entertained and distracted the brute and ignorant masses in the United States, with nonsense issues as the one posted in this article. Apparently, Americans are so stupid to realize that a thermonuclear war may be knocking the door of the so-called “Land of the Free, Home of the Brave” pretty soon…these animals don’t have a single clue that as as soon as the first bullet is fired in the Korean Peninsula, war will escalate very rapidly involving directly the US against China and Russia, in which the use of nuclear weapons is a REAL possibility.

  • Joe

    Our country is run by people who have fallen prey to the biggest brainwashing in the history of man-kind: religion. The Bible is simply the greatest story book ever written, not a holy book written by a Omnipresent being. It’s ridiculous how people can believe that their interpretation of religion is the correct one, and all other religions are wrong. There have been thousands of different Gods throughout history, each with different teachings. How can we force everyone to follow the hate perpetuated by Christianity? Please, use your brain. There’s a reason why most young people are for gay marriage; They’re better educated. Young people are smarter than ever, and can see through the lies and hatred. Why people oppose someone else’s happiness is beyond me. Please don’t screw this up. Let people be happy. Let gays marry.

    • bufkus

      there are way better stories than the bible. A Song of Ice and Fire is far more of a better epic than the bible in my opinion. the bible is more on par with the lord of the rings which is vastly inferior.

      • Joe

        In terms of influence on the world, the Bible trumps all. I wasn’t saying that it was technically the best written story, just the most influential and important in terms of our world.

  • http://www.facebook.com/people/Mobi-Mktg/100002118545853 Mobi Mktg

    I think I would have just asked, “what about the term ‘inalienable rights’ are you having a problem with, Justice Scalia ?”

  • durdurdur

    You’re pretty ignorant. Scalia might be a bigot, but he’s 1000x smarter than you are and he knows his stuff. Your argument fails to understand that the constitution allows laws not forbidden to the government. The law in question here forbids gay marriage. That’s why he asks when it became legal. If it never was made explicitly legal before how can he strike it down? Your own argument is the same one Scalia made. He just made it properly.

  • pb

    The author’s argument is very shallow. I think it runs as follows:

    1) the constitution doesn’t prohibit people from doing things, it only restrains government, so we can do what we want, unless

    2) there is a law that restrains people, provided that

    3) the law is not unconstitutional.

    No debate so far. But what makes a law unconstitutional?

    Author’s answer: “when it interferes with a right.”

    Fair, but what is a “right?”

    Author’s answer: “anything that is ‘mutually voluntary’ by consenting adults.”

    But
    that can’t be the catch-all definition of a “right.” It is
    self-evidently not my inalienable right from on high to do drugs, hire a prostitute,
    not wear a seatbelt, etc–or at least not yet. I may want to do those things, but society and the law do not recognize my right to do them. Sometimes desires (to speak my mind on a political) are inalienable rights, sometimes they are not (drink a 32 oz. Coke).

    So what is a
    “right?” And how do you tell? The author simply makes his assertion, then never moves past this and
    rather smugly assumes the argument is done and that people are idiots
    for disagreeing.

    Olson and Scalia are far cleverer than that.
    They know that finding a right is a serious matter with enormous real-life consequences. They also know that
    rights theoretically exist outside of the constitution, and perhaps have indeed existed from all time like Platonic ideals. But again, how do you
    identify what human desires are powerful “rights,” and which are just legislatable wants? There are two views:

    Scalia
    is worried that every which thing that someone wants to do might be
    claimed as a “right.” So he says that if you want to find a right, you
    have to find it in a document wherein it’s been clearly laid down by
    society. After all, if society really cares about something as important
    as an inalienable right, it should make an amendment or a Bill or at least in
    some important piece of legislation. Otherwise, some unelected judge
    will declare rights by fiat–which is a very dangerous thing in a
    democracy; a lot of power for an appointed life-time tenure holder with no accountability. This is in part
    why he asks “when did this become a right, recognized by society as a
    right?” Now, you can decide whether or not he’s a hypocrite or prejudiced, but the
    face of that argument deserves far more credit than the author gives.

    Olson
    is also very worried about finding rights out of thin air. But he is
    less worried than Scalia about judges’ abilities to look at society, see
    the rights that it’s willing to recognize–even if they haven’t been
    written down yet–and recognize them as part of the grant of rights
    that surround the Bill of Rights. This “evolution” past the text sounds to Scalia like “judges’ whim,” but Olson and Ginsburg and the rest of the liberal wing
    would say that they as judges are perfectly capable of identifying
    rights reasonably, making considered judgment calls, and carefully bounding their
    authority with precedent and analogy so as not to go off
    discovery rights willy-nilly. This is why Olsen actually answered (if
    you read the transcript) “when we as a society came to accept that
    homosexuality is immutable and thus they deserve rights.”

    You see
    the debate is more serious and studied than our author makes it out to
    be. Which is why, perhaps, Scalia is a supreme court justice, Olson is
    one of the country’s greatest lawyers, and our author is a
    blogger.

    • Eric Zuesse

      Scalia asked Olson when gay marriage became constitutional, but when Scalia faced the opposed attorney, Charles Cooper, who represented the proponents of banning gay-marriage, Scalia failed to ask him “When did it become constitutional to exclude homosexual couples from marriage?” Scalia’s prejudice was blatant there. He even volunteered that perhaps homosexuals shouldn’t be permitted to raise children, saying, “that’s a possible deleterious effect, isn’t it?” Cooper eagerly followed Scalia’s lead, by saying: “It is the Respondents’ responsibility to prove … that there will be no harm.” Scalia agreed; in other words: he accepted Cooper’s saying that the burden of proof should lie with Olson on this: proponents of individual rights need to prove their case; proponents of state-power denying those rights do not. I have a new article just up on this site quoting Scalia on a lot of other stupid and bigoted things he has said. He is just a theocratic bigot, and all of the blather among the comments here, about how intelligent he is, is itself uninformed or worse. Face facts: He’s a theocratic religious bigot who has no place interpreting our entirely secular Constitution, not intellectually, not in terms of his possessing the values of our Founders, not in his arrogant demeanor, not in any way at all.

  • delta

    it’s not the new testament.
    have 2 men/women marry under hindu culture, buddhist culture, eskimo culture, polynesian culture.
    nothing natural about homosexuals getting legally married or adopting. this is just new, western gay influenced thinking.

  • LevonTostig

    When did it become unconstitutional…

    The first instance was on July 4, 1776, with the very founding of the nation the Constitution was written to govern.

    “When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.”

    The Declaration of Independence subordinated the nation (and its laws) to God.

    The notion that we, as a nation, are subordinate to God is reaffirmed every day, by millions of people – school children, mostly:

    “I pledge allegiance to the Flag of the United States of America, and to the Republic for which it stands, one Nation under God, indivisible, with liberty and justice for all.”

    To ask, “when did it become unconstitutional,” is to fail to recognize the that God’s law is the foundation, or is *supposed to be* the foundation of our laws, our nation, our very reason for being here (do you remember the Mayflower, Justice Scalia?)

    If a single word in the Holy Bible is redefined, are we still a single nation, “under God,” and God’s Word, or are we a nation divisible by Barack Obama, under his law and his word?

    * Some of you may think I’m some sort of religious zealot – I haven’t been to a church in over 20 years.

  • Hymie Quarkstein

    Merkans should have by now grasped they have only those rights that they can afford to buy and defend with their extravagantly paid for lawyers, bribed judges and their connections to the whore houses that function as our “democracy”. All the rest is posturing like OJ Simpson pretending he couldn’t get his gloves back on as his expensive prostitute councillors played to the media circus. Those who believe any differently are newly arrived or the terminally feeble.

  • ORAXX

    I wonder if Justice Scalia thinks voting should be restricted to white, male, property owners the way it was when the Constitution was adopted?

  • darkcloud

    I believe I could as easily wrote an article titled,”Face It, Ruth Bader Ginsburg is Just a Communist in a Black Robe” or better yet, “Face It, John Roberts is the New Benedict Arnold in a Black Robe”.

  • eldave1

    Yes, Scalia is a moron. But the fact of the matter is that most Court votes have more to do with partisanship than religion. Pretty much every CNN scroll on Court votes could read – Just this in – five Republicans vote one way and four Democrats vote the other way…..we now return to the Martin Zimmerman trial…..

    http://wordsofwhizdumb.com/2013/07/the-supremes.html

 

 

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