U.S. Supreme Court Justice Antonin Scalia's appearance in Montana Monday at a Federalist Society luncheon was enlightening on many levels, giving the public a good look at the judicial philosophy behind his opinions on the Court.
Scalia spoke at length about how it wasn't up to the judiciary to decide rights or to "invent new minorities," but rather to take an extremely narrow and limited view of the Constitution and what it says. "Don't talk to me about minorities," he said.
By "new minorities," we can only infer that Scalia was referring to gay and lesbian people, whose rights were most recently upheld by the Supreme Court when the majority of justices struck down the Defense of Marriage Act forbidding the federal government from recognizing gay marriages performed in states where it is legal. Scalia, was in the minority opposing that decision in the ACLU's case Windsor v. United States.
The ballroom at the Best Western Gran Tree Hotel in Bozeman was packed, mostly with people who seemed to agree with Scalia's interpretation that the Constitution -- except in instances where it was specifically amended to include others -- only applies to the white, male property owners it did when it was written. To Scalia, due process only applies to those the majority says it applies to.
"The bottom line of Democracy is the majority rules," Scalia said, offering exceptions only in cases like free speech, freedom of religion, the right to a trial and other rights specifically enumerated in the Bill of Rights.
We couldn't disagree more. Equal protection applies to everyone in every instance.
Scalia specifically called out the right to abortion and "homosexual sodomy" as issues that he believes should be decided by Congress, not the courts. The ACLU, of course, believes that the right to have control over our own bodies is a fundamental right included in the right to privacy.
He also spoke about the Fourth Amendment, saying that he believes it only applies to "persons, houses, papers and effects," and that other privacy issues like wire tapping and the Internet must be legislated by Congress.
As for free speech, Scalia spoke about his vote in a flag-burning case. "I was the fifth vote holding that it can't be made a crime to burn the American flag," he said, explaining that flag-burning is protected expression under the First Amendment.