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Tuesday, October 17, 2006

Don’t Call Me a “Strict Constructionist”

This weekend, Associate Supreme Court Justice Antonin Scalia debated ACLU president Nadine Strossen live on CSPAN. During the predictable but lively exchange, Justice Scalia basically recommitted himself to things he’s said in judicial opinions many times before – not that that makes them any more palatable, of course. Among the gems:

  • The constitutional right of privacy doesn’t exist;
  • Laws that punish people for engaging in conduct that offends others’ supposed morals – like laws criminalizing non-commercial sex between consenting gay adults in the privacy of their own homes– are A-OK;
  • Religious minorities may be criminally punished for practicing their religion and states may not accommodate them, even if prosecuting them doesn’t serve a compelling state interest;
  • All race-conscious policies, no matter what kind, are unconstitutional (so much for the “original understanding” of the 14th Amendment that Justice Scalia claims he follows);
  • Constitutional text should be interpreted by divining what its Framers thought it meant hundreds of years ago (so “due process of law” means only “those processes that were the rights of Englishmen in 1791”);

Notably, Justice Scalia, often heralded by right-wing political figures as the nation’s preeminent “strict constructionist,” flatly rejected the label. Repeating a point he has made before, he said it does not describe his judicial philosophy.

Funny how the right’s rhetoric about “strict constructionism” is so fatuous and so misleading that even its poster-boy is embarrassed to be associated with it.

But the most entertaining moment in the debate occurred after Strossen suggested that the Constitution’s broad, freedom-preserving language must adapt to changing times. Scalia scolded, “Someday, you’re going to get a very conservative Supreme Court and regret that approach.”

Strossen, and the audience, burst out laughing. Someday? Try today.

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