A Response to Justice Scalia

At Princeton yesterday Justice Antonin Scalia asked why we can't have moral feelings against homosexuality the way we have moral feelings against murder, asserted that the Constitution is not a living document but is "dead, dead, dead, dead," claimed that there is nothing in the Constitution about the death penalty or abortion, and said that it is necessary to interpret the Constitution in conformity to the words used and their meanings at the time they were written. Here is my response to each of these assertions.

Moral Feelings

In his article Scalia Quizzed at NJ's Princeton on Gay Issue, Geoff Mulvihill of ABC News reports that Justice Scalia stated:

"If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against other things?"

Justice Scalia raises a straw man. People have an absolute right to have moral feelings about anything. What is more, in the context of a private or public political discussion they have a constitutional right to express those opinions. No-one contends that a person, organization, or political party "cannot have moral feelings about homosexuality."

Nor is there anything wrong with the law being based upon principles of morality. All laws have a moral basis.

The question is, may a law governing conduct be based purely upon moral feelings, or must it be based upon something more - the prevention of harm? Most Americans believe that people have the right to do what they wish so long as they are not causing harm. That is not only an American tradition, it is a universal principle of liberty that appeals to the human mind and heart.

There is more. Laws that regulate our corporate lives are often necessary - motor vehicle laws, consumer fraud laws, tax laws, and professional licensing laws are run-of-the-mill laws that regulate our conduct for the common good. But laws that regulate our personal lives fall into a different category. When a law regulates sex or marriage or childbearing, personal liberty is more at stake. The courts must closely scrutinize these laws to preserve our right to live our lives the way we wish.

There is yet more. Moral feelings against "sodomy" are in fact expressions of disapproval against gays and lesbians, and laws prohibiting the practice are in fact laws that are directed against those persons. No state I am aware of seeks to prosecute heterosexual people who commit "sodomy." We deal here not simply with liberty but also equality. And a bedrock principle of Equal Protection is that the law may not treat people differently without a legitimate reason. In Lawrence v. Texas Justice O'Connor wrote that "mere disapproval" is not a legitimate reason to treat people differently. There must be some justification grounded in reason - not hatred or irrational fear - before the law may differentiate between two groups of people. In the upcoming same-sex marriage cases Justice Scalia will have to opportunity to explain to the American people whether or not there is a rational reason to forbid gay and lesbian couples for marrying.

The Constitution is "dead, dead, dead, dead"

Justice Scalia's general observation that laws must be interpreted in light of the meaning that the authors of the laws intended is without question the truth. It is an axiom of  the law that a will must be interpreted in accordance with the intent of the testator. It is a similarly basic principle that contracts must be interpreted in accordance with the intent of the parties. The rule applies to statutes as well. In interpreting statutes the courts are bound by the intent of the legislature (and, Justice Scalia, to be faithful to that obligation the courts must consult legislative history).

The same is true of the Constitution. The intent of the Framers must guide our interpretation and application of the Constitution. But unlike contracts and statutes the Constitution was written centuries ago in general terms. The Constitution does not set speed limits or call for the delivery of a bushel of tomatoes upon a certain date. The Constitution enjoins our governmental institutions to follow "due process of law" - it guarantees "liberty" to every person; it prohibits "cruel or unusual punishments," and, since the Civil War, it guarantees to every person the "equal protection of the law."

With the Due Process Clause the Framers did not intend to enshrine 18th century trial practice as the norm forevermore. The enjoin us to be fair before any person may be deprived of life, liberty, or property. The precise elements of due process will necessarily change over time, but the principle that people are entitled to a fair trial never changes.

Similarly, what was not considered "cruel" in the 18th century may be cruel today. At one time the death penalty was imposed for all manner of offenses, but we have gradually eliminated its use to a handful of cases today. The time will no doubt come when the death penalty is universally regarded as cruel and will be abolished.

Nor is "liberty" a static concept. James Madison and the other framers of the Bill of Rights knew this and they included the Ninth Amendment for the express purpose of not reducing the list of human rights to a static list. As Hamilton said,

"The sacred rights of mankind are not to be rummaged for among old parchments or musty records. They are written, as with a sunbeam, in the whole volume of human nature, by the Hand of Divinity itself, and can never be erased or obscured by mortal power."

We do not expect Justice Scalia or other members of the Supreme Court to chase sunbeams or trace the hand divinity itself, but we do expect them to do more than consult old parchments and musty records in determining our fundamental rights. In deciding what our liberties are the justices must think, they must reason, they must consult their good common sense and objectively determine whether or not the conduct being outlawed is causing harm. If not, we have a constitutional right to engage in that conduct.

The principle of equality was added to the Constitution after the Civil War on the heels of Lincoln's assassination. Lincoln taught us what equality is, and he encouraged us to rededicate ourselves to the principle that all men are created equal. The meaning of equality may be found in Lincoln's Peoria Address, the Chicago Address, the Gettysburg Address,  the Address at Sanitary Fair ... perhaps most eloquently in his speech at Springfield on June 26, 1857, where he said:

They meant to set up a standard maxim for free society, which should be familiar to all, and revered by all; constantly looked to, constantly labored for, and even though never perfectly attained, constantly approximated, and thereby constantly spreading and deepening its influence, and augmenting the happiness and value of life to all people of all colors everywhere.

Equal Protection is not a dead command to emulate American society of 1866, but rather an living exhortation to constantly reexamine and reevaluate the fairness of our institutions, our laws, and our conduct. Only if we observe this duty to constantly approximate equality in our laws and institutions are we faithful to the intent of the Framers. By meeting this obligation we make the Constitution a living document.

If the framers of our Constitution did not believe in simple fairness, human freedom, and basic equality then Justice Scalia's statement that the Constitution is "dead, dead, dead, dead" would be true, true, true true. But they were idealists, and they expected us to live up those ideals.

Wilson Huhn teaches Constitutional Law at the University of Akron.