Moderator: But Professor Strossen, there are these other cases --
Strossen: There certainly are, and here we get to the ‘but Nino I don’t want you to think you’re too popular with this group’ [referring to a prior discussion about a privacy rights decision in support of the banning of police infrared imaging by helicopter within homes unsuspected of any criminal activity] I think the -- uh -- and I do enormously respect your -- uh -- being here and thank you for the votes that happen to coincide with ACLU positions. Let me zero in on what I think is probably the single biggest difference, and that is although you have a great respect for privacy in the Kyllo case in enforcing the 4th amendment -- uh -- many people, and including those of us in the ACLU who are very distressed at your failure to find within the constitution protection for what we think is at least as important a type of privacy, namely the right of consenting individuals -- mature individuals in their own homes -- to decide what they are going to see, or read, to decide with whom they are going to live, what kind of sexual intimacies or relationships they are going to engage in. Isn’t this, in fact, a confluence of the 1st amendment and the 4th amendment. That government should not have the right to criminalize -- uh -- certain materials that we read, and should not have the right to criminalize certain sexual intimacies.
15:37 Scalia: Well, that may well be so. I do not take -- I do not take any public view on whether it would be good or bad for government to allow that. That’s not the business I’m in. My job is simply to say whether those things that you find desirable are contained in the constitution. Now your -- your -- Washington -- uh -- President said in his remarks before this session that -- uh -- what the ACLU is for is democracy. Right? --
Strossen: -- I thought you would like that. --
16:11 Scalia: -- You thought I would like that. -- I’m in the business of enforcing the laws. What democracy means is that on controversial issues -- even stuff like homosexual rights, abortion, whatever -- we debate with each other, and persuade each other, and vote on it. Either our representatives, or through a constitutional amendment in the states, we decide the question. Now, there are some exceptions to that. In any liberal democracy -- and in ours most of those exceptions are contained in the bill of rights. But that bill of rights was adopted by the majority. Which is why it is proper in a democracy to have a bill of rights, because the majority adopted it. Now when they adopted it, what did they take out of that general principle -- what did they take out of that general rule of democracy, that we allow open speech, we persuade each other, and we vote -- what did they take out of it? They never took out these issues! Abortion, homosexual conduct, what -- nobody ever thought that they had been included in the rights contained in the Bill of Rights, which is why -- uh -- abortion, and homosexual sodomy were criminal for two hundred years. Now whether that’s a good idea or a bad is -- is -- not what I’m talking about. That’s not my job to say that. It is my job to say whether the Bill of Rights has taken it out of the realm of democratic debate. Just because you feel strongly about it, it isn’t necessarily in the Bill of Rights.
17:39 Strossen: As -- as -- you rightly say, the -- uh -- constitution included an amendment process, and the ACLU’s defense of rights does not stop with the Bill of Rights, nor does the constitution. Fortunately, the constitution was amended after the Civil War, to create equality rights, and rights for African Americans, and others who had been excluded under the original constitution, and it is the 14th amendment -- as you know, Nino, we agreed we would be on a first name basis since we usually are -- uh, that you understand, Nino, that the Due Process clause of the 14th amendment has been interpreted by -- I think you are the sole exception in the modern court, to refuse to find that as a source of protection for implied fundamental rights. Going back to the nineteenth century, Supreme Court justices have recognized -- uh -- that that carved out an area free from government regulation, and that area has always included basic decisions about our own bodies, our own relationships, and what we do in our own homes.
18:47 Scalia: Well, whoever said that was wrong. Uh, (laughter) you have a text that says no person shall be deprived of life, liberty, or property, without due process of the law. That’s not a guarantee of any right, it’s not a guarantee of life, of liberty, or of property -- you can be deprived of all three of them, but not without due process. And I will enforce the due process clause when what it is directed to are the procedures of trial -- procedures that are necessary to deprive you of life, liberty, or property. But to say that there is within that due process clause some substantive right to abortion -- or to anything else -- I mean, words have no meaning if you begin to talk like that. And when words have no meaning, a democracy cannot function -- because that is how we express the people’s will, through words. So, -- now -- you may say -- and you may be right -- that -- I’m not the only one on the modern court, that at least Clarence Thomas is not a fan of so-called substantive due process, which is a contradiction, and, frankly, more and more law professors are abandoning substantive due process because it is such an obvious contradiction in terms.
20:00 Strossen: It’s interesting that on the modern court, the very first justice to read the due process clause as protecting the right of individuals to choose to use contraception was a Republican justice, the very revered John Marshal Harlan, but let’s come at it from another perspective Nino --
20:18 Moderator: -- Actually, before you do, may I ask you (Justice Scalia) to explain --
20:20 Scalia: to explain whether I would change my mind?
20:24: Strossen: (laughter) May I please make another point?
20:26 Moderator: I was just going to ask Justice Scalia to explain what “substantive due process” means.
20:29 Strossen: Oh. That there are -- um -- affirmative (laughter) He doesn’t -- um -- he doesn’t believe in it, how could he explain it! (laughter)
20:38 Moderator: He knows what it is! (laughter) Well, whoever would like to explain it.
20:41 Scalia: I don’t believe in anarchy either, but I’m (laughter) -- go ahead!
20:49 Strossen: I wanted to start from the opposite perspective, that -- uh Nino, let’s put aside what the Due Process clause does or doesn’t say. We are a government of limited powers, and unless the framers gave a power to the government the presumption is that we as individuals have that freedom that government may not intrude upon. Where in the constitution does the government have the power to tell free individuals -- adults -- what we may or may not do in the privacy of our own homes with our own bodies, and with those we choose to live with?
21:28 Scalia: Nadine, you’re appealing to some natural law --
21:31 Strossen: -- Yes! --
21:32 Scalia: I don’t know that -- uh -- that I’ve been appointed to apply natural law, I apply the limitations upon democracy that the American people have adopted. And as long as those are not infringed, the constitution hasn’t been violated. It’s not up to me to decide -- you know -- what ought the equal protection of the laws to mean. There’s a lot of things it could mean, it could mean that in all public buildings you need unisex toilets. Now, you know, does it mean that? No, it doesn’t. Why doesn’t it? Because nobody ever thought that’s what it meant.
22:08 Strossen: Well, let say what that --
22:09 Scalia: -- And, in 1919, when, when, when women’s right to vote -- uh -- came up, nobody thought the supreme court would suddenly say ‘equal protection of the laws means women suddenly have the right to vote’ that’s not how it was done! We amended the constitution because it was very clear that when the equal protection clause was adopted nobody thought that it prohibited discrimination in the franchise on the basis of sex, on the basis of literacy, on the basis of property. So the American people did what you do in a democracy, they amended the constitution --
22:45 Strossen: -- Nino, in --
22:46 Scalia: -- and that’s the way all this other stuff ought to be brought in.
22:48 Strossen: But when the equal protection clause was adopted, nobody thought that it would outlaw racially segregated schools, nobody thought that it would outlaw interracial marriages. And fortunately, the United States Supreme Court did have an evolving interpretation of the equal protection clause that did read it as prohibiting those vile practices.
23:14 Scalia: Well, that’s fine. The question is whether that’s right. The question is whether, whether, you can live with an evolving constitution. Once you say it evolves, it doesn’t depend what the people thought they were doing when they adopted it -- it evolves. Somebody is going to have to decide how it evolves. Why in the world would you want nine people from a very uncharacteristic class of society -- to whit, nine lawyers -- to decide how the constitution evolves? It means whatever they think it ought to mean!
23:44 Strossen: I would want it for the very same reason that I’m happy that we are not a pure democracy, that the framers of the original constitution -- and certainly of the 14th amendment recognized that there are some rights that are so fundamental that no majority can take them away from any minority; no matter how small and unpopular that minority might be. And who is better positioned to represent and defend and be the ultimate backstop for rights of individuals and minorities than those who are not directly accountable to the electoral process? Namely, federal judges.
24:21 Scalia: Well, you know, try putting that in the text. If that was the deal, it should have been in there. How many people would have voted for it? It would have read -- uh -- the phrases within the constitution that have generalized meaning, due process of law, equal protection under the law and so forth, do not mean what they mean today, but rather, they will mean whatever an unelected committee of nine lawyers, known as the Supreme Court, thinks they ought to mean from time to time. Who in the world would vote for government by such an aristocracy? I can’t imagine.
25:00 Strossen: This is what the broad textured clauses of the constitution themselves say, Nino. By definition, the framers could have chosen very specific language, and they did, in certain clauses, so one has to assume that they deliberately chose capacious language -- to quote your colleague, or to paraphrase your colleague Justice Kennedy in Lawrence vs. Texas -- if they had intended to confine the meaning of the due process clause to very specific rights, they were capable of writing such specific language but they did not pretend to know what meaning would be appropriate as society evolved. And that was a clarion call for future generations to expand -- hopefully, we’re coming closer and closer to what was the aspiration of the Declaration of Independence but far from the reality of equal rights for all under the law in this country.
26:05 Scalia: Nadine, language can be capacious without implying that its meaning changes in the future. When they said ‘due process of law’ they meant those rights of Englishmen in 1791. And the reason they didn’t set them forth in detail is because it would have taken a casebook this fat! Of course they couldn’t list them all. So they said ‘due process of law’ which meant something different in France in 1791, or in Hawaii in 1791, but they knew what it meant in America -- it meant, that process which was the right of Englishmen. There’s no necessity to say, ‘oh, and they invited the Supreme Court to give this thing new meaning’ -- whatever new meaning this Supreme Court thinks is a good idea in the future. Someday, Nadine, you’re going to get a very conservative Supreme Court --
26:57 Strossen: -- I think that day has come! (laughter) --
26:58 Scalia: And you’re going to regret what you’ve done.
27:02 Strossen: I think that for those who would conserve the original meaning of the constitution, I think that would be fine. But Nino, do you think that the Supreme Court was wrong in Brown vs. Board of Education in 1954? As the court itself has acknowledged, it clearly was not the intent of the framers of the 14th amendment to outlaw racially segregated public schools.
27:23 Scalia: I don’t know. It -- uh -- I think, Harlan, when he dissented in Plessy, had the better of the argument, as far as I’m concerned, and I think that would have led to the same result in Brown. But even if you assume that -- yes -- suppose, I have to say yes, Brown was wrong -- which I don’t think I do -- but even if I did, what does that prove? I will stipulate that if you have an aristocratic supreme court, who changes the constitution whenever the Supreme Court thinks it’s a good idea, you’ll get some good stuff! I mean, a king would give you some good stuff. But -- you know -- the untidy process of democracy will not produce. But that doesn’t prove it’s a good system, just because now and then it gives you good results.
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