On the Subject of Marital Freedom, Justice Scalia Is a Collectivist

Individuals have the inalienable right to make any kind of living arrangements and personal commitments they choose.

Individuals have the inalienable right to use whatever word they wish in describing it, including "marriage," whether or not that term is epistemologically correct or "offensive." By the same token, third parties have the inalienable right to use whatever word they wish to in describing it, including "non-marriage," whether or not that term is epistemologically correct or "offensive." This is a direct application of the right to free speech.

Individuals and voluntary associations of individuals, including corporations, have the inalienable right to specify the terms on which they will deal with other individuals, homosexual and heterosexual. (E.g., if the Boy Scouts of America wish to exclude homosexuals, they have the right to do so.)

How should the federal and state governments treat homosexual unions? They should be sex-blind.

Yes, there are legal privileges granted married couples. Perhaps the most important ones concern inheritance and the fact that spouses cannot testify against each other in a criminal trial. I see no valid reason for these privileges. I can see an argument for the non-testimony privilege, but I don't think it holds up in the end.

Two individuals may contractually bind themselves to live together, share their property, and generally join their lives. Whether that arrangement is called a "marriage" or a "civil union," it is a contract and the government must treat all such contractual arrangements the same way, whether the contracting parties are of the same or opposite genders. After all, an all-male corporation has no legal status different from that of a mixed-gender corporation. The same should be true of a marriage (or civil-union) contract.

(As to spouse testifying against spouse, why can't juries be instructed on the reasons why testimony against a spouse may be unreliable? Would the remote possibility of having to give such testimony have a chilling effect on marriage? I can't see that; at any rate, fostering marriage is not one of the proper functions of government.)

I therefore agree with the Court's conclusion in this case. But the Court's stated basis for its decision is utterly inconsistent with the requirements of a free society-and Scalia's dissent is even worse.

First, the majority position. Consider this statement:

"The identification and protection of fundamental rights is an enduring part of the judicial duty to interpret the Constitution."

Sounds good, doesn't it? But it isn't, because of the word "fundamental." The government must not make a distinction between "fundamental" rights and any others. All rights are inviolable.

There is a philosophical distinction between fundamentals and derivatives, but no legal distinction. Philosophically, a "fundamental" is a factor contained in and expressed in the derivatives. Philosophically, the fundamental right is the right to life. But that means that every other right is an expression of and implementation of the right to life.

"There is only one fundamental right (all the others are its consequences or corollaries): a man's right to his own life." [Ayn Rand, Capitalism: The Unknown Ideal]

But the Court has long used the adjective "fundamental" to drive a wedge between rights that it likes, which it wants the state to respect, and rights that it dislikes, which it holds that the state need not respect (or on which the burden of proof is shifted to the rights-holder to show that it must be respected).

In this view, the government is granted an ocean of power, dotted by a few islands of freedom for the individual.

The principle? Government may do anything that is not expressly forbidden it; the individual may do nothing except what the Constitution expressly permits.

This is the complete reversal of the meaning of the Constitution-and of America. In the American system, the government may do nothing except the sharply delimited things permitted by the Constitution; the individual may do anything that is not proscribed-i.e., that does not violate the equal rights of other individuals.

The majority decision gives a disgraceful account of how the Court is to carry out its "judicial duty to interpret the Constitution":

"That responsibility, however, 'has not been reduced to any formula.' Rather, it requires courts to exercise reasoned judgment in identifying interests of the person so fundamental that the State must accord them its respect."

In other words, there are a few rights-violations that are too big to swallow. In these cases, the government must, alas, be restrained.

There can be no "formulas"? The doctrine enunciated by the majority reduces Constitutional interpretation to a formula-the formula of statism.

Incredibly, Justice Scalia's dissent regards the majority's ruling as too much on the side of freedom. Scalia rails against "the Court's claimed power to create 'liberties' that the Constitution and its Amendments neglect to mention."

If he read the whole Constitution, including the Bill of Rights, he would see that there is no such "neglect": the Ninth Amendment expressly denies Scalia's notion that you have only the liberties "mentioned" in the Constitution. That Amendment reads: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

Yet that's exactly how Scalia construes it. He even writes: "We have no basis for striking down a [governmental] practice that is not expressly prohibited."

The Ninth Amendment is exactly that basis. Scalia, who poses as a friend of freedom, writes:

Except as limited by a constitutional prohibition agreed to by the People, the States are free to adopt whatever laws they like, even those that offend the esteemed Justices' "reasoned judgment." A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.

You're damned right it doesn't deserve to be called a democracy, because-thanks to Locke, Jefferson, and Madison-America was not set up to be a democracy. "Democracy" here means: unlimited majority rule. Democracy does not recognize individual rights, allowing 51 percent of the voters to do whatever it wants to the other 49 percent. It was the democracy of ancient Athens that, irritated by Socrates' questioning of received notions, voted to put him to death.

The Ninth Amendment protects against the doctrine now asserted by both the majority and Scalia: the vicious notion that individuals possess only those rights enumerated-expressly stated-in the Constitution.

The Ninth Amendment was put into the Bill of Rights because many of the Founders worried that singling out certain rights, such as free speech, might give statists a pretext for claiming that only those rights exist. This is exactly what both the majority and Scalia are now claiming. The majority claims that homosexual marriage is one of the rare islands of protected rights, Scalia claims that it is not.

Scalia rejects the idea that the Supreme Court is justified in restraining the mob. His case is based on numbers: there are only 9 Justices of the Court. Worse: it is only 5 who constitute the majority. Who are these 5 to stand in the way of what the collective wishes to impose on the individual?

I'm not exaggerating. Scalia writes:

But what really astounds is the hubris reflected in today's judicial Putsch. The five Justices who compose today's majority are entirely comfortable concluding that every State violated the Constitution for all of the 135 years between the Fourteenth Amendment's ratification and Massachusetts' permitting of same-sex marriages in 2003.

That means: by protecting non-enumerated rights, judges are reining in the collective-which is arrogant and intolerable.

Scalia argues that the Court's action "robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves."

Whose freedom to govern whom? Shorn of its floating abstractions, Scalia is saying that the Court must not "rob" some individuals (the majority) of the power to tyrannize over others.

Scalia is not a friend of individual freedom. He is a collectivist.

Chief Justice Roberts is on the same premise. In his dissent he attacks the "unrestrained" nature of the Court's action. But the Court must be unrestrained-unrestrained in its function of protecting the individual from unconstitutional actions by legislatures.

It is the legislatures-the imposers of majority will upon the individual-that must be restrained. And in our system of checks and balances, the Supreme Court's task is to be the ultimate restrainer of legislative power. What the dissenting Justices demand is that the Court be restrained from restraining the legislature. This idea, also known as "judicial deference" means removing the brakes and letting legislatures run wild.

Bear in mind that the restraints in question are the imprescriptable rights of the individual.

Here's the essential of Robert's dissent: "The Court's accumulation of power . . . comes at the expense of the people."

Translation: the Court's power to stop the state governments from violating the rights of the individual comes at the expense of the power of those governments. I sure hope so.

The majority of the Court made pretty much the right decision in content, but did so by claiming that the government's power is unlimited, save only for a few exceptions to be singled out ad hoc by the Supreme Court. Ironically, Justice Thomas' dissent did the reverse: he comes to the wrong conclusion, but appeals to the right basic principle:

"Our Constitution-like the Declaration of Independence before it-was predicated on a simple truth: One's liberty, not to mention one's dignity, was something to be shielded from-not provided by-the State."

The main reason that Thomas opposes legalizing homosexual marriage is that it would give homosexuals "the State's imprimatur on their marriages."

But we must not equate legal recognition with moral endorsement. The two are clearly different. For instance, legalizing drugs would not be a governmental endorsement of drug use. Or, suppose a state enacted a law prohibiting the practice of a certain religion. In striking down that law, the Supreme Court would not be endorsing that religion.

Government exists to protect rights, not to make people behave. Personal virtue cannot be coerced. The fact that the government does not prohibit some activity carries only the message: this activity, moral or immoral, does not violate anyone's rights. The government's calling a homosexual union a "marriage" does not violate the rights of those who consider it immoral.

The whole purpose of the principle of rights is to protect the individual's moral autonomy-to ensure that it is his mind, not a government decree, that is in charge of his moral choices. Inherent in protecting the individual's power of choice is the possibility that he will make the wrong choice. As long as such immorality does not invade the rights of others, it is his choice to make, and he must bear the consequences.

America is founded on the inalienable right of the individual to make his own peaceful choices, and not to be punished for private immorality (real or imagined).

The government may not legislate morality. America is not an Islamic State. Nor is it a collectivist dictatorship, whose principle is: what is not permitted is forbidden. Supreme Court Justices, take note.