American Enterprise Institute

  • September 26, 2011

    by Jeremy Leaming

    Over the weekend Supreme Court Justice Antonin Scalia at Duquesne University Law School highlighted his belief that religious institutions have a constitutional right to flout official policy prohibiting discrimination against gays, and offered yet another defense of his method of constitutional interpretation, originalism.

    Duquesne University describes itself as a “Catholic and Spiritan University.”

    Scalia said, according to the Pittsburgh Tribune-Review, “Our educational establishment these days, while so tolerant of and even insistent upon diversity in all other aspects of life seems bent on eliminating diversity of moral judgment – particularly moral judgment based on religious views."

    He cited as examples, the newspaper reported, “attempts to sue a religious university in Washington, D.C., for offering only same-sex dorms and other attempts by a law school association to bar schools that discriminate against homosexuals.”

    Adding, “I hope this place will not yield – as some Catholic institutions have – to this politically correct insistence upon suppression of moral judgment, to this distorted view of what diversity in America means.”

    In a post for ThinkProgress Ian Millhiser says the justice’s “insistence that religious institutions enjoy a special right to discriminate against gay people is particularly troubling, and it has worked its way into decisions on the Supreme Court. In Christian Legal Society v. Martinez, a conservative Christian student group claimed the special right to have a state university subsidize their organization even though it refused to comply with the university’s anti-discrimination policy. Scalia joined a four justice dissent that would have given anti-gay groups exactly that right.”

    At the Duquesne event Scalia also defended his application of originalism “against those who say his approach is too ideological or rigid."

    Last week, Scalia, at a Constitution Day event at the American Enterprise Institute, was not in a defensive posture over originalism. Instead he chided so-called “living constitutionalists,” as jurists who flaunt the Constitution’s text to reach decisions that have expanded privacy rights.

    For example, Scalia bemoaned the Supreme Court opinions that overturned a law criminalizing sodomy, and that held women have the right to abortions.  He’s lambasted the opinions in Lawrence and Roe before, but during his talk at AEI, had added some more thought to what he dubbed the “Constitution-as-aspiration-approach.”

  • September 21, 2011

    by Jeremy Leaming

    To honor Constitution Day, Supreme Court Justice Antonin Scalia took to a podium at the American Enterprise Institute to heap plaudits on the renowned political science professor Walter Berns and knock so-called “living constitutionalists,” as advancing an inconsistent and wobbly method of constitutional interpretation.

    “I can think of no more fitting way to mark this event then [with] a lecture series in honor of my good friend Walter,” Scalia said Sept. 20 at AEI’s “Walter Berns and the Constitution: A Celebration of Constitution.”

    Saying Berns is likely best known for his 1987 book, Taking the Constitution Seriously, Scalia said he would take a bit of time to “discuss a particular way of taking the Constitution seriously, mainly taking the Constitution seriously as law.”

    But before doing so, Scalia noted a period of time when a group of jurists allegedly failed to take the Constitution seriously.

    “Since about the era of the Warren Court, American jurisprudence has been dominated by a different view of the Constitution – this view treats the document not as a legal text, with a fixed meaning, ascertainable through the ordinary tools of legal interpretation, but rather as a collection of indeterminate, aspirational provisions; a living document that serves as sort of a jumping off point for the creation of rights thought to be necessary in the current day and age,” he said.  

    Scalia said a case decided during the Supreme Court’s last term, NASA v. Nelson, offered a fine example of our “legal culture” losing sight of the Constitution’s “fundamentally legal nature.” The respondents in the case, Scalia, continued argued that the federal government had violated their constitutional rights by requiring them to undergo background checks. But the respondents’ brief, according to Scalia, did not “once identify the provision of the Constitution the government was alleged to have violated.”

    In “true” living constitutionalist style, Scalia charged that the respondents must have assumed the high court would view the right to informational privacy “to be a good thing, and like so many other good things, it would be read into the Constitution, never mind the text. The majority opinion, I’m happy to say, did not accept that invitation, but I’m not happy to say, it did not close the door to such claims either. My own view, that there is simply no constitutional right to informational privacy did not carry the day.”

    Too often, Scalia continued, the Supreme Court has gone the other way by ignoring the Constitution’s text in an effort to reach desirable outcomes.

    An example he said was Lawrence v. Texas, where the Supreme Court in a majority opinion led by Justice Anthony Kennedy, overturned a Texas law criminalizing sodomy.

    “Should there be a right to consensual sodomy?” Scalia asked. “The majority of my court thought so. And so in a case called Lawrence v. Texas, such a right was read into the Fourteenth Amendment’s due process clause, which as a guarantee of procedural fairness is textually incapable of containing such a substantive right.