Last edited: July 27, 2003

Scalia Dissent Akin to Slavery Defense

The Data Lounge, July 21, 2003

WASHINGTON—One of the lesser aspects of the Supreme Court’s landmark Lawrence v. Texas decision last month, in which a 6-3 majority declared the nation’s sodomy laws unconstitutional, was the blistering dissent delivered by Justice Antonin Scalia.

Though hailed by many of the nation’s leading conservatives last month as the more correct interpretation of the Constitution, legal historians assert the reasoning presented by Scalia was along the same lines as the court’s infamous Dred Scott decision in 1857 which upheld the institution of slavery.

In Dred Scott, Chief Justice Roger B. Taney said the Constitution and the nation’s legal history offered no suggestion that blacks should have the rights other Americans enjoyed. The laws defined them as property, not people, he said, so they couldn’t be citizens.

Similarly, Scalia’s dissent from June’s landmark ruling that invalidated anti-sodomy laws argues that the Constitution and the nation’s legal history contained no explicit mention for treating gay people equally—the law could, therefore, provided no fundamental right for gay Americans to engage in the private, intimate relations other Americans take for granted.

“In terms of constitutional interpretation, there are uses of legal history which freeze a sense of morality in a point in time,” University of Iowa law professor Lea Vandervelde told Knight Ridder newspapers “They don’t acknowledge that liberties should be expanding with human progress.” Scalia and other judges like him are proponents of that line of thinking, she said.

Scalia didn’t prevail in Lawrence, because only two other justices agreed with him. But his dissent is drawing more than passing attention because President Bush has described Scalia as his judicial role model. There is a very real danger that Scalia’s radically narrow views could come to dominate the court.

There are differences between the decisions, certainly, but the similarities are applicable directly to the justices’ views of constitutional liberties. Confronted with efforts to extend freedoms to Americans who were historically excluded, both Taney and Scalia relied on literal interpretations of the Constitution to support legal inequities.

Scalia writes extensively about the history of morality laws, and laws against gay sex in particular, and asserts they are “deeply rooted” in the nation’s history and traditions. He cites Americans’ reluctance to accept gays as business partners, school teachers or “boarders in their homes” as the basis for laws that deny them rights others enjoy. Gay sex, he argues, has never been constitutionally protected.

Taney discussed Americans’ historical disdain for African-Americans and the long line of laws that denied them rights. He said the founders believed that blacks “had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit.”

“Scalia’s dissent is very reminiscent of Dred Scott, in that it embraces Taney’s cramped notion of history and the law,” the University of Oklahoma’s Paul Finkelman, a recognized expert on the impact of the Dred Scott decision, told Knight Ridder.

“Scalia, like Taney, has a view that the only liberty traditions are the ones we’ve had since the Constitution was written. Really, that ignores the very language of the Constitution, which says you can’t deny equal protection of the law to anyone.”

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