Wolf D. Fuhrig

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The Constitution According To Scalia

When asked what kind of justice he would like to see as successor to Sandra O’Connor, President Bush named, first of all, Justice Antonin Scalia, reputed to be a conservative and a strict constructionist in his interpretation of the Constitution. If, however, one analyses Scalia’s opinions since his appointment to the Supreme Court in 1986, one finds that he is also an outspoken ideologue, sometimes a libertarian, more often a die-hard traditionalist.

Scalia prides himself in his “originalism” and “textualism,” in going directly to the language of the Constitution of 1791, in being far more concerned about making the decision fit the text than fitting it into the culture of contemporary America. More than once he has criticized his colleagues for allowing their decisions to be influenced by ideological preferences.

If Scalia were consistently conservative, as the media usually describe him, he would certainly not have ruled in 1989 with the Court’s majority that flag burning is a constitutionally protected form of expression. Nor would he have sided in 2001 with a convicted marijuana grower claiming that drug agents had illegally used a thermal imaging device to determine whether heat emanating from his home was caused by high-intensity lamps used by indoor marijuana growers. Nor would he have argued in 2004 for drastic curbs on the president’s power to detain terror suspects without due process.

Although Scalia usually favors more limitations on government, in 2005 he voted to uphold the federal government’s authority to prosecute consumers of homegrown marijuana for medical reasons. He also allowed the state of Oregon to prohibit Native Americans the use of peyote in religious ceremonies.

Whenever Scalia faced social issues, he remained staunchly conservative. In 1996 he was the lone voice on the court to oppose the admission of women to Virginia Military Institute. In Lawrence v. Texas (2003), he dissented when the majority struck down state sodomy laws. He stressed the right of Americans to enforce “the moral opprobrium that has traditionally attached to homosexual conduct” for the purpose of “protecting themselves and their families from a lifestyle that they believe to be immoral and destructive.”

Nevertheless, Scalia is not always consistent. In the 1989 case of Webster v Reproductive Health Services, he argued that reconsidering the Roe v. Wade decision permitting abortions would violate the “fundamental rule of judicial restraint.” Yet, in Planned Parenthood of Southeastern Pennsylvania v. Casey in 1992, which upheld a woman’s right to choose abortion, Scalia, a Roman Catholic and father of nine, argued that the Constitution says nothing about a right to abortion and therefore entitles government to restrict abortion. In the same vein, he insists that there is “no constitutional right to die.”

“With respect to public acknowledgement of religious belief,” Scalia wrote, “it is entirely clear from our nation’s historical practices that the Establishment Clause permits disregard of polytheists and believers in unconcerned deities, just as it permits the disregard of devout atheists.” Consequently, in the recent case of McCreary County v. ACLU, he defended as constitutional the Ten Commandments display at a Kentucky courthouse.

Scalia also opposed the Court’s stand against “excessive entanglement” between the state and religious organizations. He argued that “governmental affirmation of society’s belief in God” is not only permissible but laudable,” and he asked “people of faith” to oppose the “tendency of democracy to obscure the divine authority behind government” (in “First Things,” a 2002 essay).

Ironically, although Scalia is widely respected as a highly educated intellectual, he warns of the impact of the liberal elite on faith and morals: “We must pray for the courage to endure the scorn of the sophisticated world.”

In assessing Scalia’s decisions over the nineteen years he has served on the Supreme Court, a columnist for The Boston Globe, Cathy Young, comes to the following conclusion: “There is no reason to believe that Scalia is consciously hypocritical on any issue. Yet time and again, his strict construction of the Constitution happens to coincide, almost precisely, with some ideological preference of his own.”