On the heels of the announcement that the Supreme Court will hear two cases regarding gay marriage, Associate Justice Antonin Scalia defended some of his more controversial decisions concerning gay rights in a lecture Monday afternoon.
Scalia came to Princeton U. to discuss his recent book and share his thoughts on interpreting the Constitution. Scalia, the longest-serving justice on the current Court, has been described as the intellectual anchor of the Court’s conservative wing.
When questioned by Duncan Hosie, who identified as gay, on his dissent in Lawrence v. Texas — which struck down a Texas anti-sodomy law — Scalia stood behind his decision. Hosie questioned Scalia’s comparison between having a moral objection to sodomy and having a moral objection toward things like bestiality or murder. Scalia defended his comparison as a form of argument.
“If we cannot have moral feelings against or objections to homosexuality, can we have it against anything?” Scalia asked, explaining his dissent. “It’s a reduction to the absurd … I don’t think it’s necessary but I think it’s effective,” Scalia said, adding dryly, “I’m surprised you weren’t persuaded.”
Born in nearby Trenton, N.J., Scalia applied, but was not accepted, to Princeton. He instead attended Georgetown where he graduated summa cum laude as valedictorian in 1957. He later graduated from Harvard Law School.
Scalia was notably plain-spoken during both the lecture and the Q-and-A.
“For those of you who have been to some of our previous lectures, you’ll notice it was a little different this time,” said politics professor Robert George, the campus conservative leader who introduced Scalia and offered closing remarks.
Scalia declined to discuss issues related to active cases or potential future cases during the Q-and-A, instead directing the conversation back to the general arguments he made during the lecture.
During his lecture, he defended his view that focusing on the text and the original meaning of the Constitution are the best interpretive measures to protect the Constitution and democratic ideals.
“The text is what governs,” said Scalia, explaining that it would be wrong to bring in the historical circumstances at the time of the Constitution’s signing or to attempt to interpret the intent of those who wrote the document.
“I don’t care what their intent was. We are a government of laws, not of men,” he explained.
Scalia lamented that the trend has moved toward viewing the Constitution as a living document that is open to new interpretations. He explained that the most common argument for this approach is flexibility, explaining that his opponents argue that as society changes, the Constitution must grow with the society it governs.
“The Constitution is not an organism; it’s a legal text for Pete’s sake,” Scalia said.
He argued that while viewing it as a living document can guarantee new freedoms, it can also eliminate old ones. That is in part why Scalia said he views the structure of the Constitution as more important than the enumerated rights contained within it.
“Every tinhorned dictator in the world has a bill of rights,” Scalia said. He explained that the Founders rightly spent most of their time debating the structure and treated the Bill of Rights as an “afterthought.”
He explained that unless the structure prevents the centralization of power and provides for adequate checks and balances, any protection of freedoms could be ignored. Scalia acknowledged that this same structure, which impedes rights from being taken away, also has a tendency to slow down the process of change.
“God bless gridlock,” he said. “It’s the principal protection of minorities.”
He explained that despite his continued warnings, the idea of a “living constitution is incredibly seductive.” Scalia added that the idea is especially “seductive” to his fellow justices, and it is hard to talk someone out of such a viewpoint.
“I don’t know how we got to this stage,” he added, explaining that the approach he defends is rarely taught in law schools anymore.
“At the end of the road is the destruction of the Constitution,” Scalia said. “Unless you give [the laws] the meaning of those who enacted them, you’re destroying democracy.”