Scalia: Some on court inventing rights

East Valley Tribune (Phoenix AZ), 10/27/09, as updated there

Howard Fischer, Capitol Media Services

Editor’s note: This is an updated version of a story that was originally posted Oct. 26. It removes an incorrect reference to Brown v. Board of Education in the initial version.

One of the most conservative justices on the U.S. Supreme Court said Monday his more liberal colleagues are trying to manufacture new constitutional rights that were never intended by the drafters.

“The fight is about the Supreme Court inventing new rights nobody ever thought existed,” Justice Antonin Scalia said in an appearance at the University of Arizona College of Law.

“Right to abortion?” he asked. “Come on. Nobody thought it violated anything in the Constitution for 200 years. It was criminal.” The same, said Scalia, is true of homosexual sodomy. Yet the nation’s high court has struck down state laws banning both.

“They may be bad ideas,” Scalia said. “But don’t tell me it’s unconstitutional.”

But Justice Stephen Breyer, who shared the stage with Scalia, said his colleague was taking an overly literalistic approach to the 18th century document. He said that the changing nature of society, by necessity, requires more than looking at what Scalia called “originalism.”

“You don’t look to the details,” Breyer said. “You look to the value.”

For example, he said, flogging may have been legal even as the framers of the Constitution were banning “cruel and unusual punishment” in the Eighth Amendment.

“I don’t know the exact details of what everybody in the 18th century thought was cruel and unusual,” Breyer said. He said by enacting that particular ban, they enacted “a set of values, not a particular set of 18th century circumstances.”

And Breyer warned that using Scalia’s approach, while it will leave a Constitution, “it won’t be a Constitution anyone will be able to live under.”

The pair traded barbs, sometimes with humor, over the course of an hour about whose approach to reading and analyzing the Constitution is correct.

Scalia said the Constitution is meant to be an exception to democracy and the rule of the majority, whose views may change from time to time.

He specifically warned that those who approach the Constitution as Breyer suggests will not always find courts expanding the definition of individual liberties. He said a court that decides one day that something is cruel and unusual punishment could as easily decide down the road to allow something that now is considered barbaric.

“It goes both ways,” he said.

“The only thing you can be sure of is the Constitution will mean whatever the American people want it to mean today,” Scalia continued.

“And that’s not what a constitution is for,” he said. “The whole purpose of a constitution is to constrain the desires of the current society.”

Scalia said those who do not share his “originalist” philosophy are now deciding what the 14th Amendment of the Constitution means, the one that guarantees “equal protection of the laws” to all citizens.

“Does it include same-sex marriage? A requirement for equal pay for equal work?” he mused. Scalia said those who believe in an “evolutionary” approach “close your eyes and decide what you think is a good idea.”

Scalia said the problem with that approach is that it is designed to produce a result that some might like better.

“I will stipulate that it will,’’ Scalia said. But he said that doesn’t make it right.

“Kings can do some stuff, some good stuff, that a democratic society could never do,” he continued.

“Hitler developed a wonderful automobile,” Scalia said. “What does that prove?”

Scalia said there needs to be some bedrock of principles that the document means.

He mentioned a 2005 high court decision that concluded it is unconstitutional to execute those who were younger than 18 when they committed their crimes. A decade earlier, Scalia said, the Supreme Court set the bar at 16.

“The next time, it’ll be 21,” Scalia said. “Once you abandon the original understanding of the text, there is no other criteria.”

Scalia said even his 2001 decision outlawing the use of “thermal imaging” equipment to let police peer through walls to see activity inside a house did not require him to use an evolutionary approach to the Constitution, even though such equipment did not exist in the 18th century.

“I did it by regarding what the framers would have thought about a technique that essentially intrudes into the house without the consent of the homeowners to find out what is going on in the house,” Scalia said. “They clearly would have thought that was unlawful.”

He said there is a remedy for those who want different or broader rights: Go to the Legislature. He said those bodies are free to decide whether abortion or homosexual activities should be legal.

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