Scalia dissent compared to slavery justification
July 22 2003 12:00 AM ET
In the wake of the recent Supreme Court ruling that wiped out sodomy laws, one law professor says that parts of Justice Antonin Scalia's angry dissent echo the reasoning used in the court's 19th-century
decision that justified slavery, Knight Ridder reports. In both cases, Dred Scott in 1857 and Lawrence v. Texas in 2003, justices faced crucial questions about constitutional liberties: Are they set in stone? Or should the court take an evolving view of the Constitution and extend rights to groups the founders left out?
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 argues that the Constitution and the nation's legal history contain no explicit protections of gay sex. So gays have no fundamental right to engage in the private, intimate relations that 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," said Lea Vandervelde, a University of Iowa law professor who is writing two books about the Dred Scott decision. "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. Should the president get the chance to fill one or more high court seats, he has said he would try to find judges who share Scalia's view of the Constitution.