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"Scalia the Civil Libertarian":

Scott Turow has an interesting article in today's New York Times Magazine on the civil libertarian effect of Justice Scalia's formalist jurisprudence. Here's a taste:

Justice Scalia, especially in the last decade, has frequently taken an expansive view of the Bill of Rights, thus supporting defendants in criminal cases. Scalia is one of the intellectual godfathers of a strand of Supreme Court decisions, crystallized by Apprendi v. New Jersey, that revolutionized sentencing laws. Following a strict interpretation of the Fifth Amendment's guarantee of due process of law and the Sixth Amendment's right to trial by jury, Scalia has insisted that any fact used to extend punishment beyond normal statutory limits must be specified and proved to a jury beyond a reasonable doubt. Despite his fevered support for capital punishment, Scalia also joined a court majority in holding that the Constitution requires a death sentence to be decided by a jury, rather than by a judge, effectively setting aside every capital sentence still on direct appeal in five states. . . .

Justice Scalia is led to these seemingly divergent positions by his unyielding adherence to a school of constitutional interpretation called originalism. To Scalia, the Bill of Rights means exactly what it did in 1791, no more, no less. The needs of an evolving society, he says, should be addressed by legislation rather than the courts.

In all of this, Scalia is first and foremost a legal formalist — meaning that to him, the rules are the rules. He did not sign on to the Apprendi cases out of any special sympathy for criminal defendants — indeed, he once wrote an opinion refusing to uphold an acquittal on the grounds that the defendant's motion for acquittal was filed one day too late. Rather, he was motivated by the assumption that, as he put it in the capital-punishment case, "the right of trial by jury is in perilous decline." In other words, over the years the right had come to be interpreted more narrowly than in 1791.

Accoridng to Turow, the "looming question" is where this approach will lead Scalia in future war-on-terror cases.

Lev:
Sounds like a pitch for "The Nasiriyah Brief."
11.26.2006 11:56pm
Randy R. (mail):
Scalia might be a civil libertarian in some instances, but in many others, he loves to back the government, most notably when it involves social issues. Gay rights? Ha! The man never saw a gay person that he didn't hate intensely and want thrown in jail.

So much for allowing individual the right to do what they want in the privacy of their bedroom.
11.27.2006 12:20am
unhyphenatedconservative (mail):
"So much for allowing individual the right to do what they want in the privacy of their bedroom.:

Hey Randy, exactly what emanation of which penumbra does that come from again?
11.27.2006 12:31am
Mike BUSL07 (mail) (www):

Gay rights? Ha! The man never saw a gay person that he didn't hate intensely and want thrown in jail.

When I was a 1L, my writing teacher told me that wild exaggeration of an otherwise valid argument reduces its crediblity. Thought I would pass it on.
11.27.2006 12:37am
Bruce Hayden (mail) (www):
Given the Balko/Kerr discussion going on below, I sure would not mind Justice Scalia taking an originalist view of the 4th Amdt. That would, IMHO, put a quick end to no-knock and militiarized home intrusions. After all, the 4th Amdt. says:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The first part, about the people being secure in their persons, houses, etc. from unreasonable searches and seizures is, of course, the key, and in that, probably the word "unreasonable". What is reasonable and what is unreasonable? I would suggest that a no-knock dynamic entry is most often unreasonable. Of course, modern courts most often disagree with me. But what would those who adopted the 4th Amdt. say? My understanding of the history of searches and seizures at that time, etc., is that they would be aghast at it. And if Scalia is truly tied to originalism, he would be most likely be forced to agree. We shall see.
11.27.2006 12:51am
Ramza:
I think a more accurate representation of Scalia's opinion is he fears the O'Connor concurrence of Lawerence vs Texas. With which he dedicates part of his dissent to. He fears that if the same rational basis logic applied in Lawerence were to be applied in future gay marriage case, and in such a case the state won't be able to find a "legimate state interest" for which they can deny gay marriage. The burden is on the state to prove it is a rational state interest.

He also wrote a similar "passionate" dissent in Romer v. Evans, saying that the state was attempting to create an ammendment that target a group of people in order to preserve "traditional sexual mores."

---------------

In my opinion what Scalia sees as legimate state interest depends on the subject matter and Scalia's personal opinion on that matter. Of course this is just my opinion based off my observation of Scalia.
11.27.2006 12:57am
Mike BUSL07 (mail) (www):
Bruce, I hope your view of the 4th amdt. is supported by evidence from 1791, but, well, is it? I feel like the aforementioned Kerr amd Balko would have come up with some, had it been there...
11.27.2006 1:02am
Thorley Winston (mail) (www):
Gay rights? Ha! The man never saw a gay person that he didn't hate intensely and want thrown in jail.


And the Karnak award goes to . . .
11.27.2006 3:51am
BT:
Hey Randy R don't let your heterophobia show so early in the morning ha? Scalia has plainly said that homosexuals should appeal to the voters through activism, education, etc., inorder to change the laws of this country. Doesn't sound like hate to me. Sounds like a reasonable proposition. If that hate in your mind, count me in.
11.27.2006 8:41am
John Castiglione (mail):
The idea of Scalia as some sort of champion of a "libertarian" Fourth Amendment jurisprudence is ridiculous. This is the same Scalia who, just in this past term, voted to remove meaningful Fourth Amd. protections from parolees in Samson, and took the first step towards junking the exclusionary rule in Hudson by holding that knock-and-announce violations are not subject to the rule. In both cases, Scalia voted to allow relatively more governmental power - the antithesis of libertarianism.

Say what you will about the wisdom or "correctness" of these decisions . . . "libertarian" they are not. Signing onto Apprendi does not a jurisprudence make.
11.27.2006 9:12am
MartyB:
I love Justice Thomas.

oops, sorry, that just slipped out...
11.27.2006 10:20am
Randy R. (mail):
So I guess when Scalia states, as he did in his dissent in Lawrence, that the Supreme Court "has signed on the radical homosexual agenda" he was merely being a rational observer? That being allowed to have consensual sex in the privacy of one's own home is a 'radical' idea that must not be allowed? Scalia was also upset that if having gay sex, or 'sodomy' as he calls it, is allowed, then the state might not be able to regulate -- horrors -- masturbation!

Now why would he mention this if he didn't actually believe it? Who's the radical here?
\
During oral arguments, Scalia asked if the state could regulate homosexuality activity since it could be considered a mental disease, an bizarre question, since no one had raised the issue at argument or in the briefs.

Look, I've been around the block, and I know that when people consistently refer to me and my friends as 'homosexuals' instead of the preferred term of gay, then that person has a real problem with gays. Their insistence upon the term usually reflects the notion that gays are somehow obsessed with sex, and that it's a condition that needs treatment. A loose parallel would be someone who today uses the term Negro or colored.

Scalia has never hidden his contempt for gay people. He speaks before anti-gay goups often, but never any group that supports gay rights. He has stated that if he were in charge, there would be a lot of things that would be illegal. Granted, that leaves things to the imagination, but coupled with his stupid and ignorant assumption that there IS some sort of ' radical homosexual agenda' and that this is somehow a big threat to America, why does that surprise any of you?

I won't even go into his support for the catholic church and IT'S homophobia!
11.27.2006 10:23am
tefta2 (mail):
"Despite his (Scalia) fevered support for capital ... "

Opinions contrary to the received wisdom of the politically correct are feverish and passionate while the moonbat agenda is well reasoned and detached. It's really depressing and tiresome.

Remember the first rule of good writing, delete all the adjectives and adverbs from the first draft and restore only those that are absolutely necessary.
11.27.2006 11:04am
Thorley Winston (mail) (www):
So I guess when Scalia states, as he did in his dissent in Lawrence, that the Supreme Court "has signed on the radical homosexual agenda" he was merely being a rational observer?


Scalia didn't write that.
11.27.2006 11:07am
Thorley Winston (mail) (www):

"Despite his (Scalia) fevered support for capital ... "

Opinions contrary to the received wisdom of the politically correct are feverish and passionate while the moonbat agenda is well reasoned and detached. It's really depressing and tiresome.


Agreed, that particular sentence in the article says a lot more about the author's views on the role of the courts (i.e. if you uphold the penalty in a capital case it must be because you personally support capital punishment) than it does about Scalia's jurisprudence.
11.27.2006 11:13am
andy (mail) (www):
How do you go from this:

"Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means. Social perceptions of sexual and other morality change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the best. That homosexuals have achieved some success in that enterprise is attested to by the fact that Texas is one of the few remaining States that criminalize private, consensual homosexual acts. But persuading one's fellow citizens is one thing, and imposing one's views in absence of democratic majority will is something else."

to that:

"Gay rights? Ha! The man never saw a gay person that he didn't hate intensely and want thrown in jail. "

????????????
11.27.2006 11:40am
Fub:
Despite his fevered support for capital punishment, Scalia also joined a court majority in holding that the Constitution requires a death sentence to be decided by a jury, rather than by a judge, effectively setting aside every capital sentence still on direct appeal in five states. . . .
Might we not also consider the possibility that Prof. Turow (or his typist) mipspleled "fervent", and the word processing software didn't notice?
11.27.2006 1:21pm
Dave Hardy (mail) (www):
I'm not at all sure that in holding jury sentencing required in capital cases, the court or Scalia went beyond originalism in some way. I seem to recall that in Virginia, juries do sentence, and VA's legal system tends to work on the theory that if you couldn't do it in 1776, you probably shouldn't do it now, either. (My experience with the VA legal system was limited to a divorce, where for no-fault you had to jump thru procedural hoops invented in the 19th century to keep people from using for-fault to get the equivalent of no-fault). I'd agree that his joining the majority certainly suggests that he is not result-oriented.
11.27.2006 2:05pm
Randy R. (mail):
Scalia has written about the 'culture wars' and in Lawrence said that the Court has put itself in the middle of it. Allowing gay people the right to have consensual sex in the privacy of their own home is a war on culture that he thinks must be fought? And you think I use inflammatory language?

The reason why Scalia is a darling of the religious right is that he is so opposed to gay rights and views us as part of a larger cultural war that must be 'fought' and won. The law in question in Texas would have thrown any gay person in jail for having consensual sex, and Scalia wanted to uphold that law. And yet you think I'm pushing it to far to say that Scalia wants to throw gay people in jail! I'm merely stating exactly what his dissent really says -- gay people should be in jail.

This is hardly a secret -- what next, you're all going to be shocked to find out he thinks abortionists should be jailed? Well, if you outlaw abortion, then anyone committing abortion would be a criminal, which -- let me see, what would that mean -- Oh, I guess it would mean throwing abortionists in jail.
11.27.2006 2:52pm
tefta2 (mail):
Sorry fervent isn't any better than fevered. Why not just, Scalia supports ... .

I'm not a lawyer, just an observer of the legal mind at work. I do love the English language though and would like to see it persevere even in legal writing.
11.27.2006 2:58pm
Randy R. (mail):
Here's the actual quote from Scalia's dissent in Lawrence v. Texas. You tell me what he thinks of gay people.

Today's opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct. ... One of the most revealing statements in today's opinion is the Court's grim warning that the criminalization of homosexual conduct is "an invitation to subject homosexual persons to discrimination both in the public and in the private spheres." Ante, at 14. It is clear from this that the Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed. Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children's schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive. The Court views it as "discrimination" which it is the function of our judgments to deter. So imbued is the Court with the law profession's anti-anti-homosexual culture, that it is seemingly unaware that the attitudes of that culture are not obviously "mainstream"; that in most States what the Court calls "discrimination" against those who engage in homosexual acts is perfectly legal; that proposals to ban such "discrimination" under Title VII have repeatedly been rejected by Congress,

Someone questioned the penumbra of rights argument. No, it is true that the Constitution is silent on the question of whether gays have a right to sex. It's also silent on the question of whether striaght people have a right to sex. But I guess that is a concept very difficult for liberals to understand. See, under our constitutution, we have a framework for gov't, and LIMITATION on what the gov't can regulate. In other words, we are free to do whatever we like, unless the gov't prohibits it. The gov't does NOT grant us rights -- rather, we have the rights unless gov't limits them.

And the gov't may limit rights, and may even create new rights (such as a right to Social Security payments.). But there is these little phrase that we lawyers call 'equal protection.' If you read your constitution, you will actually see it, right there! What that means is that if the gov't grants new rights, or limits other rights, it must do so for everyone equally.

So-- if straight people have a right to sex, then gay people do too. So do blacks, so do blonds, so do the disabled, so do people with birthmarks, and on and on. Not a difficult concept, is it? But for Scalia, the so-called libertarian, it is.
11.27.2006 3:01pm
Clayton E. Cramer (mail) (www):

Scalia might be a civil libertarian in some instances, but in many others, he loves to back the government, most notably when it involves social issues. Gay rights? Ha! The man never saw a gay person that he didn't hate intensely and want thrown in jail.
You seem to have missed the point of the article quoted above: Scalia's pursuit of originalism takes precedence over his political positions. The pursuit of originalism necessarily means that there is no Constitutional right to homosexual sex, because such a right was not recognized in 1791, or 1868. That the legal profession has overall taken the contrary view rather proves Scalia's point in Romer.
11.27.2006 4:02pm
Clayton E. Cramer (mail) (www):

Someone questioned the penumbra of rights argument. No, it is true that the Constitution is silent on the question of whether gays have a right to sex. It's also silent on the question of whether striaght people have a right to sex.
Sodomy was a felony in every state in 1791, and 1868. It may still have been a capital offense in some of the states in 1791--it certainly was before the Revolution, and during the Revolution, that noted liberal and freethinker Thomas Jefferson proposed changing the penalty from death to castration.

Now, in which states was it unlawful in 1791 or 1868 for married people to have sex? None? I guess we can safely say that married people having sex is a Constitutional right under the Ninth Amendment.

The notion that equal protection prohibits all laws that distinguish between different groups shows a pretty serious ignorance of equal protection law. Convicted felons don't have the same rights as the rest of us. Minors don't have the same rights as the rest of us. Non-citizen residents lack some of the rights of citizens. Non-citizens who are not legal residents lack more rights. Those illegally in the country lose even a few more rights. And so on.
11.27.2006 4:08pm
DWPittelli (mail):
Randy R.: "Allowing gay people the right to have consensual sex in the privacy of their own home is a war on culture that he thinks must be fought?... I'm merely stating exactly what his dissent really says -- gay people should be in jail." [italics mine]

Randy, you either have not read Scalia's dissent, or you are willfully mischaracterizing it. In summation:

Scalia: "Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means. Social perceptions of sexual and other morality change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the best. That homosexuals have achieved some success in that enterprise is attested to by the fact that Texas is one of the few remaining States that criminalize private, consensual homosexual acts. But persuading one's fellow citizens is one thing, and imposing one's views in absence of democratic majority will is something else. I would no more require a State to criminalize homosexual acts--or, for that matter, display any moral disapprobation of them--than I would forbid it to do so. What Texas has chosen to do is well within the range of traditional democratic action, and its hand should not be stayed through the invention of a brand-new "constitutional right" by a Court that is impatient of democratic change. It is indeed true that "later generations can see that laws once thought necessary and proper in fact serve only to oppress," ante, at 18; and when that happens, later generations can repeal those laws. But it is the premise of our system that those judgments are to be made by the people, and not imposed by a governing caste that knows best."

Perhaps Scalia should have stuck to a 2-paragraph dissent which calls the law in question "uncommonly silly" -- so that his position could not be so willfully or ignorantly misconstrued.
11.27.2006 4:11pm
Clayton E. Cramer (mail) (www):

So-- if straight people have a right to sex, then gay people do too. So do blacks, so do blonds, so do the disabled, so do people with birthmarks, and on and on. Not a difficult concept, is it? But for Scalia, the so-called libertarian, it is.
You started from a false premise. Many states (perhaps all of them) prohibited sex outside of marriage in 1791, and I would expect that most states still had such laws in 1868, when the Fourteenth Amendment semi-magically selectively incorporated the Bill of Rights against the states. An originalist perspective would say that there is no Constitutional right for straight people to have sex. There is a Constitutional right for married couples (obviously straight, because homosexual marriage was incomprehensible in 1791, except as a form of offensive joke) to have sex, but that's not the same thing as a Constitutional right of straight people to have sex.

Let's take your misunderstanding of equal protection, and apply it consistently. Is there a right of five year olds to have sex? According to you, if anyone is allowed to have sex, then everyone is allowed to have sex on the same basis. If you admit that "equal protection" doesn't really apply to minors, then please explain why the law may distinguish between two classes without violating equal protection. The best that you can up with is to claim that there's a "rational basis" for the discrimination. Even that argument, however, blows away your bogus understanding of equal protection.
11.27.2006 4:23pm
Clayton E. Cramer (mail) (www):
The Idaho Code has all sorts of reminders of what the state of criminal law was before liberals got control of it--sort of a museum of late 19th century thinking. I suspect that these statutes were pretty typical of other state codes when the 14th Amendment was adopted. All these sections come from the current Idaho Code.


18-6601. ADULTERY. A married man who has sexual intercourse with a woman not his wife, an unmarried man who has sexual intercourse with a married woman, a married woman who has sexual intercourse with a man not her husband, and an unmarried woman who has sexual intercourse with a married man, shall be guilty of adultery, and shall be punished by a fine of not less than $100, or by imprisonment in the county jail for not less than three months, or by imprisonment in the state penitentiary for a period not exceeding three years, or in the county jail for a period not exceeding one year, or by fine not exceeding $1000.



18-6603. FORNICATION. Any unmarried person who shall have sexual intercourse with an unmarried person of the opposite sex shall be deemed guilty of fornication, and, upon conviction thereof, shall be punished by a fine of not more than $300 or by imprisonment for not more than six months or
by both such fine and imprisonment; provided, that the sentence imposed or any part thereof may be suspended with or without probation in the discretion of the court.


Below is probably the single most violated statute in Idaho, because, once you get past its squeamish Victorian language, it is an updated version of Henry VIII's buggery statute, which prohibits oral sex and anal sex, and sex with animals.


18-6605. CRIME AGAINST NATURE -- PUNISHMENT. Every person who is guilty of the infamous crime against nature, committed with mankind or with any animal, is punishable by imprisonment in the state prison not less than five years.
11.27.2006 4:32pm
Fran (mail) (www):
9th:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

If the 9th Amendment allows that other rights are retained by the people, meaning I assume, 'all the people'; why is it possible for some of the people, even a majority, to remove a right from other people?

Why is the 9th amendment not given the same standing as the other 10 amendments?

Argument:
Q. Why is homosexual conduct bad?
A. Because it has always been bad.

Q. Is homosexual conduct considered bad because of the influence and/or teachings of religions?
A. That has nothing to do with it. It has always been bad as far as Western Civilization is concerned.

Q. Really. What about the Greeks?
A. We don't respect what those fags thought.
11.27.2006 5:23pm
Fran (mail) (www):
Scalia wrote:

"Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means. Social perceptions of sexual and other morality change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the best."....

Considering his 'originalist' view, Scalia seems to be saying that even if a democratic majority made homosexuality legal, he could overrule it, because laws at the time of the constitution intended it to be illegal.
11.27.2006 6:13pm
lancep1 (mail) (www):

Considering his 'originalist' view, Scalia seems to be saying that even if a democratic majority made homosexuality legal, he could overrule it, because laws at the time of the constitution intended it to be illegal.


Fran that is completely silly. All originalism says is that it was permissible to outlaw it under the Constitution because we know that that was their intention at the time, not that the laws were frozen in amber.
11.27.2006 7:33pm
Randy R. (mail):
DWP: "Perhaps Scalia should have stuck to a 2-paragraph dissent which calls the law in question "uncommonly silly" -- so that his position could not be so willfully or ignorantly misconstrued."

It was J. Thomas, not Scalia, that said the law was uncommonly silly.
Whatever he reasons, Scalia *dissented* from the majority opinion. That means that he wanted the law to stay in place. If the law was upheld, the two litigants would have gone to jail and served time for having consensual sex in the privacy of their own home, correct? And that would mean that all gay sex in the state of Texas and all the other state's that a similar law would be prohibited, and that anyone in those states who engaged in gay sex would be criminals and subject to jail time. Am I reading this wrong?

So therefore, Scalia wants any gay person who has sex in all those states to be thrown in jail.

Furthermore, read Scalia's dissent, but substitute the words "interracial marriage" for homosexual acts.

Let's take this statement: "They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive." What the heck has this to do with homosexual acts? Scalia is clearly conflating a sex act, which the state prohibited, with all sorts of things about gay people -- bigoted views about us, actually. Who is he, or the citizens of Texas, to pass judgement upon my so-called lifestyle? I go to work, pay my taxes, abide by laws and lead neither an immoral life nor a destructive one. The fact that he would even raise such an argument in a legal opinion shows that this man see a gay person as a human being, but rather as a stereotype of evil person. What business is this in a judicial opinion?

As for Clayton, I was arguing the language in the Constitution. You are arguing state laws. And actually, sodomy wasn't illegal in many states until the late 19th century. (although you are correct about some of the states). But it doesn't change the equal protection argument.
Yes, two people under age can have sex -- as far as I know (I might be wrong) most states do not criminilize it. Statutory rape is a different law altogether.
11.27.2006 9:23pm
DWPittelli (mail):
Randy, of course it was Thomas who used the term "uncommonly silly." My point was that if Scalia's dissent were equally brief and blunt it could not be so misconstrued by the disingenuous and illogical, such as yourself.

Your claim that "Scalia wants any gay person who has sex in all those states to be thrown in jail" is only true insofar as Scalia's "wants" include that we live in a constitutional republic. Like Scalia, I prefer to live in a constitutional republic rather than an oligarchy -- whether of judicial philosopher kings, bureaucrats, or anyone else. As it happens, I, like you, would like gay sex (indeed, gay marriage) to be legal, and would vote for it to be so were I in the Legislature, or if it came up in a referendum. I would also like marijuana, poker games and prostitution to be broadly legal - and I would like the size of government and of our taxes to be about a third of what it currently is. But if I were a judge, I would have to uphold the legality of such laws, which I do not like, unless I hear a compelling argument for the laws' unconstitutionality. That is not because I "want" the status quo in each of these cases; it is because I want to live in a constitutional republic rather than an oligarchy.

By the same light, I am not always happy with whom the voters choose in elections, but I want the politician who has won under the existing election rules to take office, because our system of elections is more important than any given politician, party, or election. I don't "want" Teddy Kennedy to be my Senator, but I want it more than I want someone else to hold the office despite the electorate's preference for Kennedy.

But unlike some people, I am not arrogant enough to believe that enacting my view of justice is more important than the republic or the constitution. I also don't think a judge should be attacked for a similar lack of arrogance.
11.27.2006 9:55pm
David M. Nieporent (www):
The idea of Scalia as some sort of champion of a "libertarian" Fourth Amendment jurisprudence is ridiculous. This is the same Scalia who, just in this past term, voted to remove meaningful Fourth Amd. protections from parolees in Samson,
Yes, along with that noted right wing law-and-order authoritarian Ruth Bader Ginsburg. What he actually voted was that they didn't have any such protections, not to "remove" them.

It is not "the antithesis of libertarianism" to restrict the rights of already-convicted criminals.
11.27.2006 9:57pm
David M. Nieporent (www):
Whatever he reasons, Scalia *dissented* from the majority opinion. That means that he wanted
There's where you go wrong already. It says nothing about what he "wanted." What judges "want" is irrelevant. It means that he thought that the law didn't contradict the Constitution.
the law to stay in place. If the law was upheld, the two litigants would have gone to jail and served time for having consensual sex in the privacy of their own home, correct?
No; it would have meant that they would have been fined $200, which they were.
And that would mean that all gay sex in the state of Texas and all the other state's that a similar law would be prohibited, and that anyone in those states who engaged in gay sex would be criminals and subject to jail time. Am I reading this wrong?
Partly, as noted above, but partly true.
So therefore, Scalia wants any gay person who has sex in all those states to be thrown in jail.
Again, completely wrong. What he "wants" is entirely irrelevant. He's not a legislator; he's a judge.
11.27.2006 10:03pm
Randy R. (mail):
DWP: Well, I could agree with you, except that Scalia himself doesn't even really believe what he says.

In Lawrence, he says this: Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means.

Which is exactly what the citizens of the City of Denver, CO did. Their city council, and other city councils in that state passed laws that protected gay people from discrimination. So Scalia should have no problem with that, right?
Then the state holds a referendum that denies any rights to gay people at all. So even if through the normal democratic means at the local level we achieve rights, it is nullified by state law. And Scalia voted to uphold the state's position! Now I suppose that you could say that the democratic process was still respected because it was a state referendum, but imagine if any OTHER group was so singled out -- blacks, blonds, chinese, blue-eyed people, whatever. The answer would be clear, you cannot disenfranchise a group simply because of personal hatred.

Look, if I twisted Scalia's words unfairly, and he really is a friend of gays, and wants us to have all the rights we are entitled to, then I apologize to everyone here. So please, show me where I was wrong that he really thinks we should have the same rights as everyone else, including the very basic right to have consensual sex in the privacy of our homes.
11.27.2006 10:08pm
David M. Nieporent (www):
As for Clayton, I was arguing the language in the Constitution. You are arguing state laws. And actually, sodomy wasn't illegal in many states until the late 19th century. (although you are correct about some of the states).
Well, "many states" didn't EXIST until the late 19th century, so they couldn't have outlawed it before then. In what states was it legal?
But it doesn't change the equal protection argument.
here's the problem with that statement: there is no "equal protection argument." That is, individuals have made such an argument, but the Supreme Court explicitly declined to rule on Lawrence as an equal protection case; only O'Connor took that position. That's part of what outraged Scalia so much about the decision -- that there was no logical basis for it, as written. If they had made an equal protection ruling, it would have at least been internally consistent.
Yes, two people under age can have sex -- as far as I know (I might be wrong) most states do not criminilize it. Statutory rape is a different law altogether.
You're incorrect, on both parts of that. Statutory rape is not a "different law"; it's part of the same issue. If underage people have a "right" to have sex, then there would be no basis for statutory rape laws under the position you advance. And while the age limits are different depending on the age of both participants, two minors having sex can be a crime.
11.27.2006 10:11pm
Randy R. (mail):
DWP: But if I were a judge, I would have to uphold the legality of such laws, which I do not like, unless I hear a compelling argument for the laws' unconstitutionality

I agree totally. And a majority of the Supreme Court found the Texas law to violate the US Constitution. And they had reasons for it -- it wasn't solely because they didn't like the law. It was because they found that it violated due process. They didn't even have to reach equal protection, which was a no-brainer in the eyes of most constitutional scholars.

So why can't you accept the fact that the Court found that the law was unconstitutional? And why can't you accept the fact that Scalia thought it was okay for the state of Texas to pass a law that discriminates against a part of the population for NO reason.

and I mean no reason. The State Attorney General who argued the case could not come up with a rational reason for treating gays differently from straight people, other than to say that they gay sex is 'bad' in their eyes. And the Court said that is not sufficient.
11.27.2006 10:14pm
DWPittelli (mail):
Randy,
I agree that a majority so found (as they found the opposite 17 years previously). I do not agree that it is a judge's job to decide what is "okay," but rather what is constitutional. I also do not agree that stare decisis only applies to liberal decisions, or that a reason you disagree with is "NO reason." Or that misquoting "so-called homosexual agenda" to read "radical homosexual agenda" increases your credibility when selectively quoting from a 5800-word dissent.
11.27.2006 10:40pm
Randy R. (mail):
I stand corrected that Scalia did not use the word 'radical' when he referred to 'homosexual agenda'. I never said that stare decisis only applies to liberal decisions, but I guess it's okay to for you to twist my words...

So I guess we have to agree to disagree. But I highly doubt anyone who considers themselves civil liberatarians would find Scalia's vote as supportive of their positionm, which was the original question.
11.27.2006 11:12pm
John Castiglione (mail):

Yes, along with that noted right wing law-and-order authoritarian Ruth Bader Ginsburg. What he actually voted was that they didn't have any such protections, not to "remove" them.


Of course, we're not discussing Ruth Bader Ginsburg, or whether or not particular justices are "right wing" or not. Nor are we discussing the semantic vagaries of "granting" or "removing" or whatever a constitutional right. We're supposed to be discussing the so-called libertarianism of Justice Scalia. Please try to address the arguments.

Samson and Hudson, whatever you think of them (or RBG, for that matter), aren't libertarian decisions. Not even close. The fact that Justice Ginsburg signed onto Samson doesn't prove anything - a so-called liberal can produce an anti-libertarian decision, just as a so-called conservative (like Scalia) can. Your "point" that Justice Ginsburg signed onto Samson is totally irrelevant. Incidentally, Ginsburg dissented in the more important case, Hudson.



It is not "the antithesis of libertarianism" to restrict the rights of already-convicted criminals.


Well, first things first: you are assuming, like the majority in Samson did, that convicted criminals a priori have no Fourth Amendment rights. That was what the majority in Samson did, and it was just as transparent then. Why don't they? Neither you nor the majority make a compelling argument. The majority in Samson simply said that parolees are -sort of- like prisoners, and so they have no Fourth Amendment rights. While I can't claim to be a libertarian, this doesn't seem like a libertarian position. Simply assuming (as the Court in Samson essentially does) that a group of people presumptively don't have the right to be free from unfettered government intrusion is, I submit, the antithesis of "libertarianism." If you have a counterargument, I'd love to hear it.
11.28.2006 9:45am
DWPittelli (mail):
Randy,
Stare decisis was addressed extensively in Scalia's decision, which pointed out the hypocrisy of the majority related to the same in the Texas sodomy case. You are defending the position of the majority of the court. I do not claim you are further or explicitly linked to this issue, especially since you do not seem to have read the decision.

John,
You are right that we have moved afield from the initial post. The topic has gone from, "is Scalia a libertarian?" to "is Scalia good or bad for our civil rights?" a broader question which seems to be of interest to most of us. I do not know if anyone has a definitive answer on the extent to which commenters owe strict deference to an initial poster's point.

John, you wrote that "assuming ... that a group of people presumptively don't have the right to be free from unfettered government intrusion is... the antithesis of "libertarianism.""

John, you would be right, but for the fact that this group of people is still within the period of their prison sentences, and has been paroled at the discretion of a parole board which is (at least in most states, I believe) appointed by the executive branch. Thus some or all could still be in prison if the executive branch generally so willed, or if the parole board came to different conclusions about the utility of prison broadly, or different subjective conclusions about their merits individually. Since the executive has the power to keep them in prison, it is no radical or illiberal argument that it has the power to release them subject to conditions which arguably reduce their risk of recidivism, such as keeping a job, staying sober, staying in state, and staying in touch with a parole officer who will check on such matters and order drug tests or searches as he sees fit.
11.28.2006 4:37pm
John Castiglione (mail):
DWPittelli,

I suppose it depends on the manner in which one uses "libertarian." Your analysis (which I take substantive issue with, for it is the discredited "act of grace" theory of parole, and forgets to tie the efficacy of a suspicionless search w. the penological and rehabilitative goals of parole) seems to posit the term "libertarian" to mean "what a typical individual who considers themselves a libertarian would think." In that sense, many/most/some libertarians may not have a problem with Samson.

I, on the other hand, was using the term "libertarian" to mean the idea that any increase in government power over the individual is to be questioned (short of anarchy, of course). In that sense, Samson and Hudson, which clearly increase the relative scope of government power vis-a-vis what it was before the cases were decided, are anti-libertarian decisions. Samson is a close question, maybe . . . Hudson is not close. No true libertarian could, I believe, support Hudson, under either of our definitions. In any event, your comments are well taken. Thank you.
11.28.2006 5:52pm
Randy R. (mail):
DWP: The issue at hand is whether Scalia is a civil libertarian. I say he is not, based on his opinions. Whether Lawrence was correctly decided, whether it comports with stare decisis or not, what the majority really ruled : there are all interesting issues, but beyond the parameters of discussion. That's why I tried to stay away from those issues, and to presume you know what my position is on them before I make any statements is putting words in my mouth. And then you have the strange notion to complain that I've twisted Scalia's words!

Clearly, you don't like the fact that Scalia has a documented hostility towards gay people. I don't really care, but I've asked you to provide any evidence at all that Scalia is sympathetic to gay people, or that voting to uphold a law that would lock up gay people just for having sex might not be the way a civil liberatarian votes, or even admit that one could reasonably find that the law in question might actually BE unconstitutional (breath) And you haven't yet.

Instead of discussing the issue at hand, you bring in other issues irrelevant to the narrow discussion, and you rather bizarrely accuse me of 'twisting' Scalia's words simply because I misquoted him as mentioning the 'radical homosexual agenda' instead of just the 'homosexual agenda.' (and in fact, for accuracy's sake, I quoted a few paragraphs of his dissent.) Which by the way, you have yet to how the elimination of the word 'radical' somehow changes anything at all.

So the question remains: Is Scalia a civil libertarian? Based on his dissent in Lawrence v. Texas, most definately not. If you have any evidence that this or any other of his opinion supports civil liberties for gay people, let's hear it. Otherwise, quit the name-calling.
11.28.2006 6:36pm
DWPittelli (mail):
"The man never saw a gay person that he didn't hate intensely and want thrown in jail."

Now, who's "name-calling"?
11.28.2006 8:33pm
DWPittelli (mail):
John,

Your comments are refreshing. And I do believe that the Constitution is, compared to modern standards, a libertarian document, as well a civil libertarian one. But our Constitution does not back the libertarian side (even when that can clearly be determined) in all conflicts that may arise before the judiciary. And so as you define the argument, I do not expect or want a Supreme Court judge who is a "civil libertarian" or a "libertarian" -- even though I consider myself both of these things. Indeed, I do not want a judge to practise any political ideology, beyond the one that recognizes that the judiciary does not enforce its concept of the right, against that of the political bodies, without specific sanction from an agreed body of binding texts (primarily, the written Constitution). In other words, as I wrote earlier, I want judges who want to live in a republic, not an oligarchy. Although one can come to a conclusion about a judge whose constitutional parsing somehow almost always comes down on side of certain issues, we have seen that that is not the case for Scalia and defendants' civil liberties, Hudson notwithstanding.

In the Texas sodomy case I do prefer Thomas' shorter dissent -- which does express a political point of view, but also makes clear that it is not his duty to impose this view -- but someone (i.e., Scalia) had to write the longer and more serious dissent.
11.28.2006 9:34pm
DWPittelli (mail):
"Scalia has a documented hostility towards gay people."

I disagree with the relevance of this statement, and if you have provided the best evidence for this claim here, with its accuracy.

"I've asked you to provide any evidence at all that Scalia is sympathetic to gay people,"

I believe I have, in quotes above. You will of course take the opposite view on both these matters. And there is no objective basis for truth on this matter.

But I ask you to consider that, if personal bias is of relevance here, perhaps you are more focused on what you want as an outcome, to the extent that you have lost objectivity -- just as you accuse Scalia of. For example, I have not used short out-of-context Scalia quotes and misquotes to "prove" my point, while you have. And also consider that I am in fact in favor of your position on the merits (pro gay marriage, pro legalization of gay sex), and so am not arguing from wishful thinking.
11.28.2006 9:47pm
David M. Nieporent (www):
Simply assuming (as the Court in Samson essentially does) that a group of people presumptively don't have the right to be free from unfettered government intrusion is, I submit, the antithesis of "libertarianism." If you have a counterargument, I'd love to hear it.
Convicted criminals don't have the right to be free from unfettered government intrusion, as a matter of law (all that the constitution requires is due process to deprive someone of liberty, regardless of the substantive gloss that the supreme court has added to it over the years). And libertarianism is based upon the principle of (to use the three-word description) non-initiation of force. Once you commit a crime (a real crime, with a real victim), you've initiated force and you forfeit your rights.

I suppose it depends on the manner in which one uses "libertarian." Your analysis (which I take substantive issue with, for it is the discredited "act of grace" theory of parole, and forgets to tie the efficacy of a suspicionless search w. the penological and rehabilitative goals of parole)
Those seem like policy arguments, not legal ones. (Who exactly decided that it was "discredited," by the way?)
seems to posit the term "libertarian" to mean "what a typical individual who considers themselves a libertarian would think." In that sense, many/most/some libertarians may not have a problem with Samson.
I don't think libertarian means that, but it also doesn't mean this...
I, on the other hand, was using the term "libertarian" to mean the idea that any increase in government power over the individual is to be questioned
Libertarianism has a lot to say about what things should be crimes, but it doesn't speak to what should be done about people who have committed the things that should be crimes.

If the purpose of increasing the power of parole officers is to create jobs for the parole officers' union, then yes, it would libertarian to oppose it. (But not a legal argument.) But if the purpose is to protect us from people who have committed crimes, and to punish people who have committed crimes to deter them and others from committing those crimes in the future, then it's entirely consistent with libertarianism to support such a policy. (Whether you think it wise policy is a separate question.) Libertarianism isn't AmnestyInternationalism; an individual libertarian may be against harsh treatment of criminals, but libertarianism isn't.


As for Hudson, my libertarian instincts are against it (but I certainly don't think that the exclusionary rule is inherently libertarian dogma); my practical legal instincts tell me that the exclusionary rule in that case would have little legal effect. First, if you make the penalty for not waiting before executing a knock-and-announce warrant heavy, then the criminal justice establishment will just relax the rules (even more than they already have) for issuing no-knock warrants. Second, how exactly is one to enforce a rule that says that somewhere between 4-15 seconds is the right time to wait after knocking before executing a warrant?
11.29.2006 3:11am
John Castiglione (mail):

Once you commit a crime (a real crime, with a real victim), you've initiated force and you forfeit your rights.


Excuse me? You can't possibly believe that. I would refer you to the Fourth, Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendments, but you clearly ignore them in making that statement. Maybe I misunderstood you. I hope so.


Who exactly decided that it was "discredited," by the way?


Gagnon v. Scarpelli, 411 U.S. 778 (1973) (" a probationer can no longer be denied due process, in reliance on the dictum in Escoe that probation is an "act of grace.").


Libertarianism has a lot to say about what things should be crimes, but it doesn't speak to what should be done about people who have committed the things that should be crimes.


I don't believe that to be the case at all, nor would most libertarians. I believe that libertarianism is a much more extensive philosophy than simply "What should be a crime." I think it is a philosophy fundamentally concerned with the relative power of the government vis-a-vis the citizen. Your "definition" is entirely too narrow.
11.29.2006 9:45am