SOUNDBITES — “My burden is not to show that originalism is perfect but to show that it beats the other available alternatives. Did any provision of the Constitution guarantee a right to abortion? No one thought so for almost two centuries after the founding. Did any provision in the Constitution guarantee a right to homosexual sodomy? Same answer. … I accept it as a valid, democratically adopted instrument. And it has after all an amendment provision, which is available to everybody.” —U.S. Supreme Court Justice Antonin Scalia, delivering the keynote speech at a Ohio State University law school symposium, arguing the Constitution must be interpreted within the context of the history it was written, not today’s modern times (via)
Antonin Scalia
“Did any provision in the Constitution guarantee a right to homosexual sodomy?”
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Dick Mills
“Did any provision in the Constitution guarantee a right to homosexual sodomy?”
Absolutely not! But, because the Constitution guarantees Equal Protection to all of us, you can’t allow straight men to fuck women in the ass, and then turn around and not allow gay men to do the same. And that is why the Supreme Court struck down laws that discriminate against gay men in their own bedrooms.
And, the thing about it is, Jackass Scalia, if you don’t know that, then what the fuck are you doing on the court.
J.P.
Well, he is wrong. The Constitution has always been considered to be a living document, that means it changes overtime. Otherwise, Scalia might as well but all people of African descent back out in the fields.
terrwill
Ahh poor “Nino”, he pines for the days of when the only blacks you saw were in the fields picking cotton, and when wearing a “wife beater” meant you actually beat your wife……….
Keith Kimmel
I look forward to the day Scalia gets too old to serve. It would be worth everyone on a 747 dying in a fiery crash as long as Antonin Scalia was among the passengers.
Attmay
The Constitution guarantees a right to be protected from the whims of goyische scum like this.
jason
The problem with Scalia’s point of view is that it requires one to be a mind reader. He’s saying you must interpret the Constitution in the context of the time it was written, with its patriarchal social mores etc. According to Scalia, you need to be able to think like they thought back in 1770 or whenever the Constitution was written.
Our forefathers were not in a position to discuss sexual mores in the Constitution. In fact, sex was never spoken about in public at that time. Of course there is not going to be an explicit sexual entitlement listed. However, our forefathers used terms that were sufficiently encompassing to guarantee our rights. This is something Scalia needs to understand.
Perhaps Scalia’s real problem is that he worships at the altar of the Vatican.
RichardR
Scalia is one of the main reasons I voted for Obama. Roberts, Thomas, and Alito, yes, but mainly Scalia. What a nasty hateful creep.
strumpetwindsock
Didn’t they repeal sodomy laws down in the states? I thought the right to screw was already settled, or wasn’t Scalia aware of that?
As far as I can see things like DADT and DOMA are in breach of equal access and opportunity IRRESPECTIVE of orientation.
Some people would have thought emancipation and women’s suffrage unthinkable 225 years ago, but the basic principle – human equality – has not changed.
But of course, some fools only see the gonads, not the people.
JRD
This instantly makes me want to turn his “context” back on him.
A) It also doesn’t guarantee the right to heterosexual sodomy, which at the time included consensual oral sex.
B) Does that mean the only arms we have the right to bear are single loading rifles?
Cam
If the constitution must be seen within the context of the time when it was written then Scalia must feel that Women should not have the right to vote and that Slavery should still exist.
GayGOP
Ahh, the liberals are at it again with their hateful rhetoric. Actually, the Constitution was considered to be adaptable, but not living. There is a major difference. A living constitution would mean that neither text nor spirit of the Constitution matters, because people can make it mean what they want to. But an adaptable constituion merely means that the Constitution, by being ambiguous, can be applied because the principles are uniform. Hence, Scalia does not believe in a right to privacy because no right to privacy is engendered in the Constitution, merely a freedom from unreasonable search and seizure, as well as freedom from self-incrimination. Those, frankly, don’t constitute a right to privacy, they are actually discrete, narrow rights.
More importantly, Scalia would have no issue, legally, whatsoever with sodomy being legalized, so long as it was done through the legislature, as it properly should have been done.
I agree with Thomas’ dissent in Lawrence. The law was uncommonly silly, but it was not within the power of the Supreme Court to declare sodomy laws unconstitutional. Only the state legislatures could do that.
TikiHead
Jefferson himself would have disagreed with Scalia. He understood that people grow and change, and are under no obligation to follow outmoded mores.
TikiHead
And then there’s that pesky Ninth Amendment:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Scalia hates that one.
Steve
According to Scalia, “equal protection” was intended only to grant black people the same rights as white people. He extends that reasoning to deduce that they did not intend to grant equal protection to gay people.
The problem with his argument is, of course, that if the authors of the 14th amendment had wanted only to grant black people the same rights as white people, they could have said so. But they didn’t. They actually wrote, “No state shall … deny to any person within its jurisdiction the equal protection of the laws.” The plain words say “any person”, not “any black person”. That grants the right of equal protection to ALL people, not just to black people.
And, that grants the right of equal protection to every kind of person, including gay people, too. No “interpretation” or “intent” is needed.
The only grace in this might be that Scalia has clearly stated his prejudice against gay people, in his official opinions. Because of that prejudice, he should recuse himself from any case involving the rights of gay people. Failure to recuse from such a case could be considered cause to impeach.
TikiHead
Um no, GayGOP. The court is well within its duties to strike down laws that are against the principles of the Constitution. And as the Ninth Amendment says, just because a right is not enumerated does not mean it does not exist.
Scalia is just plain wrong.
terrwill
And you just know it kills him that he can’t ask Clarence Thomas to fetch him anything…………….
Cam
No. 9 · GayGOP said….
I agree with Thomas’ dissent in Lawrence. The law was uncommonly silly, but it was not within the power of the Supreme Court to declare sodomy laws unconstitutional. Only the state legislatures could do that.
_____________________________________
Currently it is accepted by the court that there is a right to privacy. That is one of the foundations behind decisions like Roe v. Wade. The court has not reversed that supposition. Therefore, based upon the decisions of pasts courts underlining a right to privacy the decision in Lawrence, was absolutly within the scope of the court. That is the reason the court is there, to determin if laws do not fit within the constitution, as the constitution has currently been “Adapted” to contain the right to privacy that case was entirely appropriate.
Mr. Enemabag Jones
GayGOP, what are doing on Queerty? Isn’t there a public toilet, or wooded area you should be trolling?
Mr. Enemabag Jones
GayGOP
I agree with Thomas’ dissent in Lawrence. The law was uncommonly silly, but it was not within the power of the Supreme Court to declare sodomy laws unconstitutional. Only the state legislatures could do that.
Noooo. What he stated was that he voted to uphold it as he could find “no general right of privacy” or relevant liberty in the Constitution. He added that if he were a member of the Texas Legislature he would vote to repeal the law.
Missanthrope
GayGOP:
Have you ever read his Lawrence dissent? He actually says in that one that the Supreme Court has taken a habit of backing a “gay agenda”. Despite his public comments. using social conservative buzz words in a official dissent doesn’t sound like impartiality to me.
Republican
It is true that one can disagree with the idea that the Constitution should be treated as a constantly evolving document without necessarily being homophobic or racist or anything of the sort. For example, despite the bigots who do exist there, I know of quite a few members of the Federalist Society who are not homophobic at all. Some simply have a narrow view of the Constitution that doesn’t extend to gay rights. They support such rights, but think they’re best secured via a different process. (One can disagree with the effectiveness of this approach, but at least from my point of view, their sincerity is not in doubt.)
But just because someone can make such an argument and not be a bigot, doesn’t mean that anyone who makes such an argument is not a bigot. Based on some of the comments he’s made at oral arguments, in his opinions, and in public speeches, it’s quite clear to me that Justice Scalia, despite his intelligence (and I will concede that he is quite intelligent), is a bit homophobic. He doesn’t begrudgingly vote to uphold anti-gay laws that he thinks shouldn’t exist but that he also thinks the Constitution doesn’t ban. He actually seems to like these laws. That makes all the difference in my mind.
Mike
“the Constitution must be interpreted within the context of the history it was written”
So there were no homo’s on the battlefields during the war of independence then?
and I can’t see anything in the Constitution http://en.wikipedia.org/wiki/United_States_Constitution
about legalised hetero sex either.
Mike in Brooklyn
Hey GayGOP (@ No. 9) , go fuck yourself. Oh wait, according to Scalia, you don’t have that right.
jason
JRD said:
“Does that mean the only arms we have the right to bear are single loading rifles?”
LOL! Perfect exposure of the gun-loving nut wing’s hypocrisy on the Constitution.
pantherq
So he is imposing his religious dogma on our future lawyers?
How could that be bad it’s not in the constitution.
Oh, wait yes it is in the constitution. And he is the representation of constitutional interpretation, he needs to stop promoting his religion.
Attmay
By every conservative definition of the phrase, Scalia is a judicial activist. Is there a method for removing judges from the U.S. Supreme Court before Father Time does so himself?
A where is it a right for breeders to get all sorts of government freebies for undergoing a religious ceremony? I had a Bar Mitzvah, where’s my tax credit?
B
JRD wrote, “Does that mean the only arms we have the right to bear are single loading rifles?”
I’ve sometimes joked (semi-seriously) that the right to “bear arms” based on “original intent” should be taken to mean original weapons (including pistols) – the type where you pour in some powder, pack it with some gizmo, stick in a round bullet, and then get off at most a single shot, with less than stellar accuracy. That is, as long as the powder, etc. isn’t too wet.
And for that matter, while we now consider dueling to be uncivilized, at least when the did it they’d pick a safe spot where they wouldn’t accidentally shoot some random member of the public. Let’s bring that back too (for gang bangers who would otherwise shoot it out on crowded streets). At least the rituals with seconds, etc., would teach them some manners. 🙂
Sodomites
How many more gays will be beaten or killed because of the words of bigots like him?
Someone needs to find out where he lives and SODOMIZE that asshole with a baseball bat!
1EqualityUSA
Until the other night, here on Queerty, I had not heard of impeachment taking place with a Supreme Court Justice, so I googled around and was interested to find that only one was impeached, but later, the decision was overturned.
http://en.wikipedia.org/wiki/Samuel_Chase
I love Thomas Jefferson so, so much. Interesting man. Such a neat story, his life. I would love to have been his neighbor. I’d serve him the best wine in my unsubstantial cellar, watered down, of course, the way he liked it. On the shoulders of giants…..
Rainfish
As a Legislator in Virginia, Thomas Jefferson proposed a law which mandated: “Whosoever shall be guilty of Rape, Polygamy, or Sodomy with man or woman shall be punished, if a man, by castration, if a woman, by cutting thro’ the cartilage of her nose a hole of one half inch diameter at the least. – Bill Number 64, authored by Jefferson and “Reported by the Committee of Advisors, 18 June 1779.”
Virginia Sodomy Law link is : http://www.glapn.org/sodomylaws/usa/virginia/virginia.htm
So don’t fall too madly in love with that abominable, slave-fornicating hypocrite. And, as a deist (who was not a Christian, but rather some sort of existentialist, non-sectarian) Jefferson did not even have Judeo/Christianity as an inherent excuse for his cultural prejudices. Yes, he was magnanimous in his drafting of our Declaration of Independence, but on individual rights regarding intimate privacy — his insights were truly deficient.
And, no one please make the “it was just the times” BS excuse. The French Revolution (1789-1799) fully decriminalized consensual adult homosexuality shortly after our own American Revolutionary War.
In 1791, when Louis-Michel Le Peletier de Saint-Fargeau (1760-1793) presented the newly drafted criminal code to the National Constituent Assembly, he explained that it outlawed only “true crimes” and not “phony offenses, created by superstition, feudalism, the tax system, and [royal] despotism.”
(to be continued)
Rainfish
(continued)
As a Legislator in Virginia, Thomas Jefferson proposed a law which mandated: “Whosoever shall be guilty of Rape, Polygamy, or Sodomy with man or woman shall be punished, if a man, by castration, if a woman, by cutting thro’ the cartilage of her nose a hole of one half inch diameter at the least. – Bill Number 64, authored by Jefferson and “Reported by the Committee of Advisors, 18 June 1779.”
Virginia Sodomy Law link is : http://www.glapn.org/sodomylaws/usa/virginia/virginia.htm
So don’t fall too madly in love with that abominable, slave-fornicating hypocrite. And, as a deist (who was not a Christian, but rather some sort of existentialist, non-sectarian) Jefferson did not even have Judeo/Christianity as an inherent excuse for his cultural prejudices. Yes, he was magnanimous in his drafting of our Declaration of Independence, but on individual rights regarding intimate privacy — his insights were truly deficient.
And, no one please make the “it was just the times” BS excuse. The French Revolution (1789-1799) fully decriminalized consensual adult homosexuality shortly after our own American Revolutionary War.
In 1791, when Louis-Michel Le Peletier de Saint-Fargeau (1760-1793) presented the newly drafted criminal code to the National Constituent Assembly, he explained that it outlawed only “true crimes” and not “phony offenses, created by superstition, feudalism, the tax system, and [royal] despotism.”
So yes, some early governments were very much aware of how important the right of privacy regarding intimate relationship was. The French Revolution (notwithstanding all of its horrors) was well ahead of the fledgling, and ethically retrogressive, United States on that issue.
The bottom line is, Jefferson was not a very enlightened man in this area. Surely he was acquainted with classical Greek literature and well aware of how the ancient world, especially Greece (the first Democracy), viewed same-sex attraction and love. Socrates, Plato, Alexander the Great, The Band of Thebes…etc. all extolled the virtues of same-sex love. Yet, Jefferson, a well-read and “civilized” man was still a willing participate in the furtherance of the stranglehold of religion and religion-based prejudices by his slavish adherence to puritanical aspects of English criminal law.
He was also not that fond of the equality of women: While President, Jefferson wrote that “The appointment of a woman to office is an innovation for which the public is not prepared, nor am I.”[90]
Rainfish
Please excuse the double entry…the first post was truncated and the second post was duplicated due to a slow response from the server, no doubt…
But for your further edification, please read the History of Sodomy Laws in the United States at the following link:
http://www.glapn.org/sodomylaws/history/history12.htm
1EqualityUSA
Ow, Rainfish! Why, why? Why did you burst my bubble? I didn’t know Jefferson felt this way. Let me hit the books again. I hadn’t read that. I have a pain in my gut now. I have to go…The double entry was o.k. It’s a good thing to read twice. My shoulders are slumping. Thanks for the information, I think.
1EqualityUSA
Rainfish–If Jefferson were alive today, he might have relaxed a bit, especially with all the research about immutability and physiology of it. From the site you gave, it looks as though many, many states carried laws against sodomy. “It was just the times.” BS excuse keeps nagging on me. Depressing.
1EqualityUSA
” Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.”
Circuit Court of Caroline County, Virginia, 1959
“Almighty God created the genders male and female, and he made them attractive to one another, and placed them on the same continents. And but for the interference with his arrangement there would be no cause for gay marriages. The fact that he separated the genders shows that he intended for the genders to mix.”
“US Supreme Court 2009 ?”
This was a post submitted by a guy named Charlie Williams a while back. I liked it.
Mike in Brooklyn
To Rainfish and 1EqualityUSA, it is Jefferson’s great accomplishments that make his flaws all the more grotesque. Lincoln opined that the Civil War was God’s great retribution for the Founding Fathers’ betrayal of the Declaration of Independence.
Scalia’s great accomplishment is as a Supreme hypocrite and political hack. He preaches original intent when that argument suits his political agenda. He loves to repeat his “No where in the Constitution does it say _____” mantra. Well, “no where in the Constitution does its say” that Supreme Court has any authority whatsoever in the election of a president. He has also written an opinion that proven innocence DOES NOT overcome a guilty verdict, even though the 8th Amendment to the Constitution clearly states that the government cannot impose cruel punishments (yes Mr. Scumbag Scalia, it is cruel to imprison innocent defendants, jury verdict notwithstanding).
And CAM, your comment No. 17 is right on; however your comment No. 10 is not. Queerty gives just a soundbite, but in the article, Scalia chastises that, essentially, amendments are required to change original intent. And there are amendments that ended slavery and granted women’s voting rights. Don’t give Scalia and his supporters, here being Gay GOP and Republican, the anywhere to go; he has plenty of scum opinions and false logic, as you pointed out in No. 17.
Brian Miller
The Constitution of the 18th century interpretation also wouldn’t have looked kindly on a man of Mediterranean origin and “common” Italian heritage serving on the high court.
strumpetwindsock
@ Rainfish
Interesting thoughts.
Who is to say, though if Jefferson’s feelings came from British or America’s own puritanical tradition (which was much more repressive).
If anything Jefferson was more influenced by and supportive of French Republicanism. And he mistrusted most things British, to the point of wanting to drag the U.S. into another war supporting France against Britain, which would have been a very foolish move.
Brilliant though he was, I do agree with you that his conduct sometimes hypocritical, unethical and unrealistic, in areas of statecraft as well as human rights.
He was also not very good at keeping his finances in order.
And regarding the French Republic’s dropping sodomy from the criminal code it was a very interesting historical first (recent history, anyway). Nevertheless I do think it was “just the times” though not the way you might expect. That quote about true and phony crimes makes it pretty clear they were more interested in attacking the church, the monarchy and their other enemies than defending anyone’s rights.Case in point – the Jacobins were pretty clear that they wanted women in the kitchen, not in government.
Plus one should put that omission in the context of how unstable that government (if one can truly call it that) actually was. A neat footnote, but given their record I don’t think it has much political significance at all.
strumpetwindsock
@ Rainfish
Excuse me. I did some follow-up reading and found that the French sodomy law remained repealed even after the revolution (though they did re-instate other moral laws). It WAS significant. My mistake.
That said, I still think the motive behind Republican legal reform was propaganda against their enemies moreso than defending rights, which they had no problem trampling in other ways.
Rainfish
@ #34 1EqualityUSA: I don’t mean to keep “bursting your bubbles” about Jefferson, but (sorry to say)…
It was Thomas Jefferson who created the federal govenment policies which led to Andrew Jackson’s genocide of Native Americans.
====== The following was gleaned from Wikipedia =======
” He told his Secretary of War, General Henry Dearborn (who was the primary government official responsible for Indian affairs): “if we are constrained to lift the hatchet against any tribe, we will never lay it down until that tribe is exterminated, or driven beyond the Mississipi.”
Native American policy:
Jefferson was the first President to propose the idea of a formal Indian Removal plan.
Andrew Jackson is often erroneously credited with initiating Indian Removal, because Congress passed the Indian Removal Act in 1830, during his presidency, and also because of his personal involvement in the forceful extermination and removal of many Eastern tribes. But Jackson was merely legalizing and implementing a plan laid out by Jefferson in a series of private letters that began in 1803 (for example, see letter to William Henry Harrison below).
Jefferson’s first promotions of Indian Removal were between 1776 and 1779, when he recommended forcing the Cherokee and Shawnee tribes to be driven out of their ancestral homelands to lands west of the Mississippi River.
His first such act as president, was to make a deal with the state of Georgia that if Georgia were to release its legal claims to discovery in lands to the west, then the U.S. military would help forcefully expel the Cherokee people from Georgia. At the time, the Cherokee had a treaty with the United States government which guaranteed them the right to their lands, which was violated in Jefferson’s deal with Georgia. ”
Source: http://en.wikipedia.org/wiki/Thomas_Jefferson
1EqualityUSA
Rainfish, must you pour salt into my wounds?
strumpetwindsock
@ Rainfish
Of course there is Jefferson’s famous quote about refreshing the tree of liberty from time to time with it’s natural manure – the blood of tyrants and patriots.
It’s a dangerous, irresponsible and completely unrealistic statement. It shows a childish disregard for human life and social order, and a grave misunderstanding of what liberty really is.
He was completely caught up by the idea of smashing an old order, but in many (not all) areas looked down his nose at his compatriots (Washington, Adams) who did the hard work and made the difficult compromises of rebuilding government.
tjr101
This is precisely why I will never vote for a Republican president… because they will put people like this on the Supreme court. “Strict Constructionist” jurists for conservatives are those that infringe on everyone else’s rights but their own.
Attmay
@40 tjr101:
We still don’t know how Sonia Sotomayor will vote when it comes to our rights.
Attmay
@37 Brian Miller:
“The Constitution of the 18th century interpretation also wouldn’t have looked kindly on a man of Mediterranean origin and “common” Italian heritage serving on the high court.”
And the fact that he’s also a fucking Papist scumbag would not sit kindly with them either.
Rainfish
Sorry, “1EqualityUSA”…LOL!
Irregardless of Thomas Jefferson wanting to drill holes in the noses of Lesbians; castrate Gay men; keeping women and slaves in their place, as well as rationalizing ethnic cleansing; stealing native American land and promulgating an official federal government policy of the outright extermination of all Indian Tribes (men, women and children) who would not agree to be assimilated (sounds like the Borg, doesn’t it?)…in spite of all of that…Jefferson was a great guy.
Besides, he could speak intelligently about art so he couldn’t be all bad — could he?
~ Rainfish
=======================================
In Response to #41 1EqualityUSA
Rainfish, must you pour salt into my wounds?
——————————————–
1EqualityUSA
Irrespective or regardless, “Irregardless” doesn’t exist. Your knowledge of history is impressive. Good for you, Rainfish. I’ll hit the books. I hadn’t read the antigay stuff ever. My partner and I acquired a two volume set, of the complete correspondence between Thomas Jefferson and Abigail and John Adams, “The Adams-Jefferson Letters” and they ended up being good friends. Strumpetwindsock had said that Jefferson looked down his nose at Adams and Washington. So whatever they had endured in their youth, must have been resolved in old age. Didn’t they die on the same day too? I’m enjoying all of your posts.
Republican
Mike in Brooklyn said:
“Don’t give Scalia and his supporters, here being Gay GOP and Republican, the anywhere to go”
Next time, please actually read my comments before lumping me in with others. GayGOP is apparently one of Scalia’s supporters, but I am not. That was made perfectly clear by my comment in this thread.
Have a good day.
strumpetwindsock
@ 1EqualityUSA
Yes, they did patch up their differences and become friends again, but I think they did not speak or correspond for 20 years or so after Adams lost the presidential election to Jefferson.