Justice Scalia was mouthing his greatest fits today before an Italian-American audience. This judge, who continues to speak at occasions wherein he expresses his views about how upcoming cases should be decided (in violation of the rules of conduct governing all federal judges – and this one rule happens to apply to the Supreme Court, too – but no one will dare enforce it) proclaimed from his lofty, no-photograph zone/perch that “things like abortion and suicide are not in the Constitution”; therefore, the democratic process – rather than judges – should decide upon what laws should be passed regarding these issues.
The problem with the implicit point Scalia is making – namely, that that which is not in the Constitution can be prohibited (notwithstanding the 9th Amendment, conveniently read by Scalia so as to render it worthless) – is that history belies the point. A specific right need not be conferred in a country’s governing document for one to know that the right exists. For example, the Supreme Court would no doubt agree with me when I say that there is a “fundamental right to sit in my house and watch television”. Why? Because the right, regardless of whether it is viewed as a “right to privacy,” is one that the government has no legitimate interest in banning, and it is one that never has been thought to have been subject to restriction by a legislature (were a legislature to abolish the right, the law abolishing it would be struck down). In this example, the dictates of past practice as well as the ilelgitimacy of any governmental interest in regulating the activity are the “volume of history” that is worth the “page of logic”.
Scalia proceds from the starting point that government can regulate anything it wants to, unless a specific law – promulgated through the democratic process – permits the activity. However, we simply do not know whether the Framers believed the same thing. And why should they have believed it? Such a view was contary to their experience. Was foxhunting impermissible simply because no law granted the right to foxhunting? Of course not. So much for the converse of that which is not prohibited is permitted. Scalia believes that that which is not permitted is prohibited, or can be, for any reason. The legitimate interest the state has in such prohibition is its interest in -surprise – prohibiting it. In other words, the fact that the government, according to Scalia, can ban everything that which is not permitted means that the government automatically has a legitimate interest in such a ban; government can ban something and therefore it is “legitimate” for government to do so.
The rational basis test has more teeth than this, of course. Scalia claims to have subscribed to this test, yet has never found a law to be invalid under this test. To him, perpetuation of bigotry, irrational prejudice and hate are legitimate interests. How does he know these interests are “legitimate” any more than his opponents “guess” the interests are not? He knows because of his religious views. Thus the rational basis test can be given lip service by those who purport to believe in it but who use the presumption of favoring the government it confers to put their own prejudices into law. These people, of course, are not merely “ratifying” democratic opinion (as Scalia thinks judges should do); they are deciding, plain and simple. They are getting involved. To pronounce that a court should not be involved in something is to involve it, because one must, to make such a pronouncement, render a judgment about the role of federal courts.
Scalia simply cannot accept the fact that some people believe – and have a right to believe – that the courts, rather than the legislature or the executive, is the body that is to determine what, given what laws exist, government (the legislature and executive) can and cannot do. One has every right to believe this as a simple implication of the separation of powers doctrine. To assert that a legislature has the sole right to determine upon what matters it can govern is to in effect allow a legislature to execute its own laws. Why should courts decide what the proper subjects of legislation are? Because, out of the three branches of government, the courts by default can be the only body that can make this decision, given that no one else can. They can, of course, be overruled by constitutional amendment in this aspect, but such amending actually requires the other branches to implicitly acquire power – to assert a right – rather than to exercise it as if the right was God-granted.