Supreme Court Justice Antonin Scalia gave a speech at a conference in New Orleans yesterday. Among other things, he said the following:
"It is literally true that the U.S. Supreme Court has entirely liberated itself from the text of the Constitution," Scalia said at a conference Uptown on the merit selection of judges."So we now have a constitutional right to abortion, something that had been criminal for 200 years," he said. "We have a constitutional right to homosexual sodomy, something else that had been criminal for 200 years."
Now the article doesn't give the context for those comments. It's possible that what he said was more nuanced than an isolated quote can show. But if he's making the simple argument that any ruling that establishes that people have the right to do what law has long forbidden, that's a ridiculous argument. Brown v Board of Education overturned a long tradition of anti-black laws, including an established Supreme Court precedent in Plessy v Ferguson. Would Scalia argue that forced segregation should have been maintained simply because it had been that way for centuries? One would hope not.
Likewise the laws against interracial marriage that the Supreme Court overturned in 1967 in Loving v Virginia. Nowhere in the constitution was there any mention of such laws, which had a very long history. At the time of the founding of the US, most of the states had laws against interracial marriage or interracial fornication. Surely Scalia would be consistent and say that this decision is another example of judges being "entirely liberated from the text of the constitution" and that it was wrongly decided. Surely Scalia would have agreed with the Dred Scott decision, which was decided largely on the same basis he is arguing - that laws against slavery had a long history in America and were in place at the time of the constitution, so obviously the constitution did not provide any protection to slaves whatsoever.
I plan to write another essay soon on the issue of Scalia and majoritarianism.
But isn't a key difference there, that there were constitutional amendments passed? The constitution did not provide protections for slaves or for blacks until 1865 when the 13th amendment was passed abolishing slavery.
Then in 1868, the 14th amendment, among other things, declared that all persons born or naturalized in the US were citizens deservign due process and equal protection.
Prior to those amendments, the judicial system did not have a lot of power to extend rights to blacks. Even with them the courts did not give blacks the right to vote, though it might hve been argued that they had it from the 13th and 14th amendments, it took another constitutional amendment in 1870.
Would it have been the right thing to do to give them the vote earlier? Certainly. It is not clear, however, that it was in the courts power to do so. Today, the courts seem to routinely take such things upon themselves, which is, I believe, Scalia's point.
It's not always about what law is right or wrong, but the proces that changes it. It can be tempting to say we should allows judges to change laws that are wrong, even when they do not have the constitutional authority to do so, however it is dangerous to place that much power in the hands of so few, which is why the courts were limited they way they were.
In the Dred Scott case, yes, perhaps the 14th amendment was the difference. One could argue that strictly as a legal question, the case was decided correctly, regardless of the unfairness of the decision. But the Loving decision was in 1967, a century after the 14th amendment, and by Scalia's reasoning, if he's consistent, it must constitute illegitimate "judicial activism". Nowhere in the constitution does it mention the right to marry outside of one's race, and there was a 200 year history of laws against it in the US, including at the time of the founding. It obviously was not the framer's intent that the races should be allowed to marry each other. The exact same arguments that Scalia uses against the Lawrence decision were also used against Loving, that it was an "activist" court "inventing a right that had not existed in 200 years" and against the "clearly expressed will of the electorate" in the states that had such laws.
The problem is that the 14th amendment was subjected to judicial activism almost from the moment that it was ratified. It's original intent was deliberately flouted by the Court, which allowed the sort of laws it was intended to render void to survive that 100 years. Loving v Virginia was just a very long delayed reconing.