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Justice Scalia: Deciding Controversial Cases on Abortion, Sodomy Is ‘Easy’

Oct. 5, 2012 8:13am Jonathon M. Seidl

FILE - In this March 8, 2012 file phoo, Supreme Court Justice Antonin Scalia speaks at Wesleyan University in Middletown, Conn. Credit: AP

WASHINGTON (AP) — Justice Antonin Scalia says his method of interpreting the Constitution makes some of the most hotly disputed issues that come before the Supreme Court among the easiest to resolve.

Scalia calls himself a “textualist” and, as he related to a few hundred people who came to buy his new book and hear him speak in Washington the other day, that means he applies the words in the Constitution as they were understood by the people who wrote and adopted them.

So Scalia parts company with former colleagues who have come to believe capital punishment is unconstitutional. The framers of the Constitution didn’t think so and neither does he.

“The death penalty? Give me a break. It’s easy. Abortion? Absolutely easy. Nobody ever thought the Constitution prevented restrictions on abortion. Homosexual sodomy? Come on. For 200 years, it was criminal in every state,” Scalia said at the American Enterprise Institute.

He contrasted his style of interpretation with that of a colleague who tries to be true to the values of the Constitution as he applies them to a changing world. This imaginary justice goes home for dinner and tells his wife what a wonderful day he had, Scalia said.

This imaginary justice, Scalia continued, announces that it turns out “`the Constitution means exactly what I think it ought to mean.’ No kidding.”

As he has said many times before, the justice said the people should turn to their elected lawmakers, not judges, to advocate for abortion rights or an end to the death penalty. Or they should try to change the Constitution, although Scalia said the Constitution makes changing it too hard by requiring 38 states to ratify an amendment for it to take effect.

“It is very difficult to adopt a constitutional amendment,” Scalia said. He once calculated that less than 2 percent of the U.S. population, residing in the 13 least populous states, could stop an amendment, he said.

In a lengthy question-and-answer session, Scalia once again emphatically denied there’s a rift among the court’s conservative justices following Chief Justice John Roberts’ vote to uphold President Barack Obama’s health care law. Scalia dissented from Roberts’ opinion.

“Look it, do not believe anything you read about the internal workings of the Supreme Court,” he said. “It is either a lie because the press knows we won’t respond – they can say whatever they like and we won’t respond – or else it’s based on information from someone who has violated his oath of confidentiality, that is to say, a non-reliable source. So one way or another it is not worthy of belief.”

“We can disagree with one another on the law without taking it personally,” he said.

—

The issue of gay rights, or more specifically same-sex marriage, is expected to be a big one in the term that began this week. While the justices initially were scheduled to discuss the topic at their private conference in late September, it now appears likely that they will not make a decision about whether to take up a gay marriage case until after the presidential election, which would mean arguments would not take place until the spring.

The justices have a variety of pending appeals they could choose to hear that deal in one way or another with gay marriage.

One set of cases looks at whether same-sex couples who are legally married can be deprived of a range of federal benefits that are available to heterosexual couples. Another case deals with California’s constitutional amendment banning gay marriage and federal court rulings striking down the amendment. An Arizona case deals with a state law that revoked domestic partner benefits, making them available only to married couples. Arizona’s constitution bans gay marriage.

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Comments (34)

Verceofreason
Posted on October 5, 2012 at 5:55pm
If Scalia and Thomas had a moron contest -it would be a tie.

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- zimmieindc
  Posted on October 15, 2012 at 10:57am
  $50 says you have never read the Constitution. Not parts of the Constitution, the entire Constitution.
  
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Denise Matthews
Posted on October 5, 2012 at 12:35pm
Our Constitution was based on the Word of God particularly the 10 Commandments but all of the Bible. The issues that this supreme court judge addresses are all violations thereof. When we live as Gods commandments outline we prosper greater than the rest of the world; when we don’t we lose. We need to pray that our USSCJ will return to the base of morality and reject the deviations therefrom.

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- phillyatheist
  Posted on October 5, 2012 at 1:38pm
  “Our Constitution was based on the Word of God particularly the 10 Commandments but all of the Bible”
  
  sorry, but you could not possibly be more wrong. have you read the Constitution? there are simply no words to describe how ignorant of the facts you are.
  
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Lar5
Posted on October 5, 2012 at 12:03pm
Question for Scalia: For over 200 years it was legal to be black and a slave in every state. .Is that easy too?

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- TEIN
  Posted on October 5, 2012 at 1:12pm
  @Lar5…legal to be black??? Really?? Don’t work off the Libby/Progressive premise that all blacks were slaves and all slaves where only black…The Constitution had the premise of slavery no matter what origin you were…Thankfully, after a bloody terrible USA civil war the premise of slavery is no more….
  
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red_white_blue2
Posted on October 5, 2012 at 11:59am
It’s difficult for a REASON – DEAL with IT! Get the votes or don’t – Simple! As to the cases they will be making decisions on, and setting in motion implications for gay marriage, the constitution would protect gays the right to life, liberty, and the pursuit of happiness. This means you are free to pursue it, but there is no guarantee of getting it. If you get it, great. If you don’t, oh well.
It would not grant them coverage under health care as health care itself isn’t covered in the Constitution. Health care is a man made entity drawn up to assist society (a product of the Progressive Era). As such, it has the right to decide who is helped, and who is not. It gets to decide requirements. You are not entitled to an ENTITLEMENT.

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Lord_Frostwind
Posted on October 5, 2012 at 9:38am
Judicial decree has made it far too easy to change the Constitution. There was a reason it was made so hard to alter, because society had to be in agreement to make such drastic changes. Now look at what is happening, society is breaking apart along cultural lines. Civil conflict in the United States always gets worse when the Courts become active in altering the Constitution, just look at US history from the 50′s till today.

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phillyatheist
Posted on October 5, 2012 at 9:31am
who says that Conservatives are stuck in the past?

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- 00100111
  Posted on October 5, 2012 at 10:12am
  Derpty derp derp derp.
  
  Report this comment
- Cavallo
  Posted on October 5, 2012 at 10:40am
  Because liberals and their fascism is hip, cool.. the new thing on the block? Why have laws when we can just make crap up as we go, eh? The rule of law is for cavemen, and peasants? Why change the law when we can just change what the words mean in the law by fiat. Hey, did we ever get around to defining what the word “is” is?
  
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- TEIN
  Posted on October 5, 2012 at 1:21pm
  @Philly..Conservatives are living off from a societal frame work that works and is only 225 years old, and not trying to implement a “Progressive” agenda that has destroyed every civilization it has corrupted..Go live in the middle east and see what the “Progressive” movement end game looks and feels like…
  
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- phillyatheist
  Posted on October 5, 2012 at 1:35pm
  the times they are a changing. i know that’s sad for Conservatives. the Nation moves forward, getting more tolerant and offering more freedoms for it’s citizens. you’d think that Conservatives would embrace that, but they’re simply too afraid of change. most importantly, they fear a changing demographic that will lead to a perceived decline in political clout. adapt and survive, or risk becoming irrelevant. consider yourselves warned.
  
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Tex Expatriate
Posted on October 5, 2012 at 9:30am
Justangry is quite right. The framers put the amendment process in the constitution so that when society changes sufficiently the constitution can be amended. They made it rigidly suficient to prevent fruitcakes such as Democrats from chaning it every few years.

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GirlWithCurls
Posted on October 5, 2012 at 9:27am
I think its silly to say something like “We don’t live in the 18th century anymore…. we are no longer subject to [religion].” Like it or not gravity exists. It has since the beginning of time. Like it or not the sun warms our planet. Like it or not we humans need oxygen. Like it or not we will always recognize that murder is wrong. Stealing is wrong. Fraud is wrong. Tyranny is wrong. There are very basic truths that we hold self evident which time has no mastery of. As for bashing religion, on behalf of all the religious groups of the United States, I’d like to say that our beliefs are relevant and define society. We are encouraged to vote according to our principles, which are shaped by our beliefs.

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lordjosh
Posted on October 5, 2012 at 9:25am
From the article
“Scalia said the Constitution makes changing it too hard by requiring 38 states to ratify an amendment for it to take effect.” (notice “too hard”)

““It is very difficult to adopt a constitutional amendment,” Scalia said. He once calculated that less than 2 percent of the U.S. population, residing in the 13 least populous states, could stop an amendment, he said”

Journalism malpractice?

I think J. Scalia would agree that it was meant to “too hard” for very good reason.

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Anonymous T. Irrelevant
Posted on October 5, 2012 at 9:10am
This is how ALL the judges SHOULD be ruling. Unfortunately, marxists hate the Constitution and love depravity and will rule in depravity’s favor every time. I hope Scalia lives a looong time.

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progressiveslayer
Posted on October 5, 2012 at 8:30am
I think the way justice Scalia interprets the constitution is the correct way because like he said he applies the words in the Constitution as they were understood by the people who wrote and adopted them. It’s too bad the rest of them don’t operate like Scalia,the four leftists simply interpret the constitution to fit their view of modern day America.

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- RealLiibertarian
  Posted on October 5, 2012 at 8:53am
  We don’t live in the 18th century anymore. People are more educated, have more scientific knowledge, and are no longer subject to the vagueries of religion and it’s hold on society. Like it or not, the world does change. The basic concept of the Constitution is freedom, and as society progresses, people gain more freedom. To hold to 18th century social values is to restrict freedom in the modern world. Those social values no longer have any significant weight in a world 200 years more mature.
  
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- justangry
  Posted on October 5, 2012 at 9:10am
  @RealLibertarian, The founders knew this was going to be the case. That’s why there’s an amendment process. Originalism is the view of constitutionalism a “Libertarian” can get behind because the alternative is progressive.
  
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- SamIamTwo
  Posted on October 5, 2012 at 9:25am
  RealLiibertarian
  
  And we are headed back to the 17 century of paganism. Of course we now say it’s a good thang just as they said back in the old testament. Just repeating history of paganism. JIMHO
  
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- RealLiibertarian
  Posted on October 5, 2012 at 9:27am
  Angy, I have no problem with originalism at all, as long as it is true to the written word. But there is no word whatsoever in the Constitution about gays, abortion, or any of the other social issues that are so much a divide today. To say that ‘this is what the current thought was in 1781, so this is what we should hold to’ is no different from the ultra liberals extrapolating that the government should be a nanny to all. Both are guess work and are expanding the reach of the Constitution far beyond it’s actual written word.
  
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- Strider26
  Posted on October 5, 2012 at 9:31am
  @RealLiibertarian:
  
  So your position is that the more progressive a society is the less it needs morals and the more depravity should abound. Actually I think you are right. Which is why progressives are so unpopular with moral people.
  
  Report this comment
- Lord_Frostwind
  Posted on October 5, 2012 at 9:33am
  Real, the judge has a point. The world does change, but it should not be the Supreme Court and the judges who alter the constitution to fit the current need, that power belongs to the Legislature. That way you don’t have just a group of people who make rules based on what they think society needs, but rather what the people of the United States and the officials they elect believe the laws should reflect. It has become far too easy for people to make changes to the constitution and avoid the built in precautions against such action.
  
  Ruling by judicial fiat is a dangerous precedent, and forcing people to adopt to your doctrines and decrees when they do not accept them is a recipe for hatred and conflict.
  
  Report this comment
- RealLiibertarian
  Posted on October 5, 2012 at 9:43am
  Frostwind, it’s an admirable thought but it has problems. When the Constitution says not a word about a subject, then there is no need to rule on it. “Something not expressly forbidden is allowed’. Unfortunately, we have people on both sides trying to shoehorn ideas into the Constitution that were never there in the first place, some by means of voting, some by means of judicial action. One concept that is there is that the majority should not override the freedoms of the minority. Many of these ballots that are coming up now are exactly that. Let’s face it, freedom scares a lot of people on both sides of the aisle. They want government to provide a nice safe place where their ideas and values are not challenged, where nothing can offend them. That is not the place of government, not the concept of the Constitution, and therefore the justices must step in to say no. It is sad that the appointment of USSC justices is a partisan issue, and therefore we get very few truly neutral justices.
  
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- jman-6
  Posted on October 5, 2012 at 9:51am
  real- since your so smart do you have more freedom now or less? If u are real libertarian then u know u just lied or u are really a liberal!
  
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- justangry
  Posted on October 5, 2012 at 10:08am
  @RealLibertarian, Right, there’s no word about abortion in the Constitution. Meaning it’s a states’ issue until the federal government passes an amendment. Like Scalia says… it’s that simple.
  
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- justangry
  Posted on October 5, 2012 at 10:15am
  I mean what arguing is the Living Constitution Theory. Oliver Wendel Holmes Jr. and Brandies, as far as I can tell, were the architects of this theory. Please note the time period they were Scotus. Justices that use this justification today to bypass the amendment process are Kagan, Sotomayer, Ginsburg, etc.. Like ProgressiveSlayer says, it is the right way to interpret the Constitution. Any other interpretation is progressive. And really it should be the determining factor we discuss in election cycles. Do we want to preserve our tradition in natural law? Do we want to recognize that our rights come from a higher authority than man? The Judge is coming out with a book on this subject soon. I’m sure he’ll be able to present it much better than I can in 1500 characters. Obviously that view of Constitutionalism presents its own set of problem. What we have to determine is whether those problems are worse than the alternative. I’d gather from what we’ve seen that they are minimal be comparison.
  
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- 00100111
  Posted on October 5, 2012 at 10:19am
  Your social freedoms aren’t being restricted by “18th century values”. Just because enough people convinced you that depravity, lying, stealing, or even murder is ok doesn’t mean the law should change to say it is ok also. YOUR values have changed. The values that made us who we are have not changed. Seems to most people you are the exception, not the norm. You need to come to terms with that.
  
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- RealLiibertarian
  Posted on October 5, 2012 at 10:22am
  Jman- freedom is being assaulted on all sides. I think we were far more free in the 70′s and 80′s than we are now. On the right we have the social and religious conservatives trying to limit gay rights, reverse Roe, censor media and the internet, and on the left we have the food police, smoking police, political correctness police and the 2nd Amendment antis. And they are all trying to get their justices on the USSC bench so that their agenda can reign supreme. How about we have a bunch of justices that say no to all these laws that are being passed, reverse many of the laws on the books, and let people live however they want?
  
  Angry, I don’t buy the states rights argument, I think its been taken too far. I’m not willing to trade an intrusive federal government for an intrusive state government. I think they should both be reduced by 75%. And eliminate local government completely. Right now we have three sets of government, telling us what to do and how to live. Most of these laws, on all three levels, are being passed because somebody, somewhere, got their knickers in a twist and decided to be offended. Well, there is no right to not be offended in the Constitution. People should suck it up and learn to live with it, whether it’s prayers at a football game, porn on the internet, churches on every corner, or the local pagans putting up their holiday displays next to the nativity.
  
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- justangry
  Posted on October 5, 2012 at 10:48am
  Point taken, but the premise is State and Local governments are more responsive to their constituents. The courts are supposed to determine when the states violate our natural rights. Right now the states are controlled by the spending powers of the federal government to push its agenda. They like the money the fed is giving them, so they go along with the Fed to keep that gravy train coming in.
  
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- RealLiibertarian
  Posted on October 5, 2012 at 11:08am
  Angry, I have two problems with that. First, is ‘what are natural rights?’ To listen to those on the right, especially the religious ones, those rights are only those that come from some deity, and the only one they recognise is the Judeo Christian one. As a pagan, I have some real problems with that. Add to that , the idea that many of these rights are being redefined as ‘privileges’ and making it so that the government can charge, licence, or restrict these rights. Not to say that the left isn’t guilty, too, but mose of the natural rights argument comes from the right.
  
  The second problem I have is the concept that state and local governments are more responsive to the local population. That is exactly what is wrong with it. Instead of keeping a minimalist view of the law, the closer a government is to the local population, the more likely it is to respond to a vocal few and restrict all becausew a few are offended.. While the idea of a fdweral government scares me on many levels, at least it has the virtue of being distanced from the local activists and has the leaving power of the country behind it. I really don’t like the idea that my neighbors may be able to dictate how I live and use my property,\.
  
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- justangry
  Posted on October 5, 2012 at 11:34am
  Real quick because I’m taking the kiddo out for to the pumpkin patch. Natural rights don’t necessarily come from “God”. I’m an agnostic and believe in natural rights. They more come our traditions, our humanity. In simple terms nature. It’s a feeling in our gut. Is the NDAA wrong? Why?
  
  And I think you missed my point on the spending powers.
  
  I’ll be back later this afternoon.
  
  Peace
  
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- justangry
  Posted on October 5, 2012 at 3:23pm
  @Real, Back… I understand what you’re saying. Ohio has a mob rule mentality. It only takes a majority vote to amend the state constitution and some bad things have happened. The states are not supposed to make any laws that violate our rights and the feds are supposed to protect us from this happening in the courts. However many of the laws you’re seeing at the state and local level are a result of the taxing/spending powers of the fed, not the will of the local communities themselves. An example of taxing power is the cigarette taxes. The fed wants people to stop smoking so it raise the federal tax on cigarettes as a deterrent. Their other power that is being abused is the spending power. The fed wants the drinking age to be 21 so it refuses to give states that don’t comply with this funding for roads. Much at what we’re seeing at the local level is more a result of this type of BS than your neighbors being busy bodies. That’s the reality what’s going on. The police state is coming down from the federal government because that’s where the funding comes from. Keep in mind the spending power of the federal government is being abused and no where authorized in the Constitution either. I don’t claim to be an expert on Libertarian ideology at all, but it does seem that you’re arguing the “living constitution theory”. As I stated above there are problems with founders’ intent as well. I just think they’re less pronounced than the alternative.
  
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