Justice Scalia on Constitutional Interpretation

Today I attended a public address by the Honorable Antonin Scalia, Associate Justice of the Supreme Court of the United States. Justice Scalia spoke in Albuquerque New Mexico, at an event co-sponsored by the Federalist Society and the University of New Mexico School of Law. Justice Scalia spoke about Constitutional Interpretation and made a strong and compelling argument for the originalism interpretation theory which suggests that the Constitution of the United States does not change, and that it can only be changed through the amendment process. Justice Scalia was nominated as an Associate Justice of the Supreme Court by President Reagan and he assumed office on September 26, 1986. Justice Scalia is a self described conservative and serves as an example to conservatives today in regard to how the Constitution should be interpreted when applied to court cases and controversial issues such as gay marriage, abortion, gun rights, etc. The Justice argues that the idea of the Constitution as a 'living' document began with the Warren Court in the 1950's. The idea of the Constitution as a living document suggests that the Constitution must be flexible and change with the times. Justice Scalia's concern with the living document theory is that the United States is in danger of having a Supreme Court that will reflect the will of the people, which he suggests is the exact opposite of what the Supreme Court is supposed to do. The Supreme Court was designed to protect the individual from the majority and to ensure that legislatures do not impose the will of the people if it is contrary to the Constitution. The originalism theory, also known as the original intent theory looks for the understanding of the Amendment, or law, when it was adopted, as opposed to interpreting and changing the Constitution to make it mean what you want it to mean. Justice Scalia uses abortion and gay marriage as the main examples for his argument. He contends that the original drafters of the Bill of Rights never would have thought that they intended the right to have an abortion to be included within the right to privacy. He also makes the assertion that the drafters of the 14^th Amendment never would have imagined that the Amendment would be used a means to make gay marriage a constitutionally guaranteed right.

Justice Scalia represents the conservative ideology of the Supreme Court and is a big proponent of judicial restraint, State sovereignty, and the original intent theory. Conservatives today should study the theories that Justice Scalia applies to his interpretations of the Constitution and strive to exemplify the same principles.

Marriage: A Union Between a Woman and a Man

The Iowa Supreme Court on Friday ruled in a unanimous decision that the Iowa statute limiting civil marriage to a union between a man and a woman violates the equal protection clause of the Iowa Constitution. This would not have come as a surprise to me if it were California we were talking about, as California is a very liberal state, but Iowa? Come on! The GOP needs to take a strong stance on the position that marriage should be between a man and a woman. The Iowa Supreme Court and other courts across the country have used the Equal Protection clause of the 14th Amendment to find statutes that limit civil unions to male/female couples unconstitutional. Republican leaders must argue that this is a flawed assessment of the statute. Laws that outlaw homosexual couples from entering a civil union do not deny any individual the right to marry. If Steve wants to marry Mark, the state can deny him, but he can always go marry Jane. He is not being denied the right to marry; he is being denied the right to marry Steve just as the state may deny the marriage between brothers and sisters, and marriage to more than one spouse, a.k.a polygamy. The GOP needs to stand up for initiatives like the Proposition 8 bill that made gay marriage illegal in California. The issue of gay marriage will not go away any time soon, and the GOP cannot hide from it anymore. During the 2008 campaign McCain did not take a strong position on gay marriage but President Obama did, stating in a response to the Human Rights Campaign Presidential Questionnaire: "I do not support gay marriage. Marriage has religious and social connotations, and I consider marriage to be between a man and a woman." It’s time for Republicans to hold President Obama accountable for that statement and push for a Constitutional ban on gay marriage. Now, I’m not so naïve as to believe that a Constitutional ban on marriage is going to happen anytime soon, it didn’t happen with a Republican in office, but the fact that Obama will not act on the issue despite the pressure will give Republicans an issue to get voters passionate about in 2012. Congress passed the Defense of Marriage Act (DOMA) in 1996 and President Clinton signed it into law. DOMA defines marriage as a relationship between a man and a woman for purposes of federal law. In addition, although it leaves each state free to define marriage however it likes, DOMA also affirms that no state is required to recognize a same-sex marriage from another state under the Full Faith and Credit Clause of Article IV of the U.S. Constitution. The United States has recognized that marriage should be between a man and a woman, but the states still have discretion on the matter. A Constitutional ban, although a drastic move, would eliminate the ability of a state to allow gay marriage. A Constitutional ban might be drastic, but it might be the only way to preserve the “sanctity” of marriage and the religious and social connotations that goes with it.