Antonin Scalia’s Moral Foolishness

So Antonin Scalia doesn’t know the moral difference between homosexuality and murder, eh? Here’s a primer:

• In murder, somebody dies.
• In homosexuality, somebody loves and is loved.

Seems like it’s easy enough to tell the difference, but as always, the Supreme Court justice differed on Monday at Princeton, making the case that legislators’ moral sensibilities should guide the making of laws. “If we cannot have moral feelings against homosexuality, can we have it against murder?” Scalia asked in response to a question. “Can we have it against other things? I don’t apologize for the things I raise.”

What’s troubling is that Scalia’s comments came right after the Supreme Court agreed to hear a pair of gay marriage cases this year. Most justices would be careful with their comments as a result; Scalia really does not care what you or anyone else thinks about his conduct.

And it’s part of a career-long pattern in which Scalia mistakes his own cleverness for wisdom, which Constitutional ramifications for us all. Some other things he believes:

• The Constitution doesn’t protect women’s rights. The 14th Amendment says that “all persons born or naturalized in the United States” cannot be deprived of life, liberty, or property without due process of law. That clause has been interpreted to cover federal jurisdiction over sex discrimination. Scalia’s problem? He doesn’t believe women count as “persons.”

“In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don’t think anybody would have thought that equal protection applied to sex discrimination, or certainly not to sexual orientation,” he said.

But Scalia was being too clever by half. After all, the 19th Amendment gave women the right to vote; if that doesn’t make them full citizens, full persons, what does? And doesn’t that mean the 14th Amendment should be understood to include women as “persons?” Of course it does.

• The Constitution doesn’t prevent torture. Yes, the Bill of Rights includes a ban on “cruel or unusual punishment,” but Scalia says that doesn’t mean investigators can’t beat up on a crime or terror suspect. Why? Punishment comes after you have been found guilty; that means pre-punishment violence against suspects is OK.

“What’s he punishing you for?” Scalia said in a 2008 interview. “When (the investigator is) hurting you in order to get information from you, you wouldn’t say he’s punishing you. What is he punishing you for?”

• He doesn’t believe in conflict of interest. Over the years, Scalia has refused to acknowledge when his own ties to the conservative movement make him partial in cases before the court—he even went hunting with a litigant one time.

These are just a few examples. What do they mean? Basically, that Scalia is both a tremendously entertaining and tremendously lousy justice.

When Scalia eventually leaves the bench, the Supreme Court will lose 30 years or so of experience, but gain roughly two centuries of wisdom. The man is smart, but he mistakes the combination of his own morality and cleverness for wisdom. There’s a word for that: Sophistry. A man who can’t tell the difference between homosexuality and murder? A fool.