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.