Thursday, June 27, 2013

Scalia’s DOMA Dissent Highlights Conservative-Libertarian Split on Supreme Court

Scalia’s DOMA Dissent Highlights Conservative-Libertarian Split on Supreme Court:
During the March 2010 oral argument in the case
of McDonald
v. Chicago
, Justice Antonin Scalia upbraided the
libertarian lawyer Alan Gura for asking the Supreme Court to follow
the original meaning of the Privileges or Immunities Clause of the
14th Amendment and thereby force state and local officials to
respect the individual right to keep and bear arms.
“What you argue is the darling of the professoriate, for sure,”
Scalia mocked in response to Gura’s case for reviving the
Privileges or Immunities Clause, “but it’s also contrary to 140
years of our jurisprudence. Why do you want to undertake that
burden instead of just arguing substantive due process, which as
much as I think it’s wrong, I have—even I have acquiesced in
Substantive due process refers to the method whereby judges
invalidate laws or regulations that violate what they determine to
be a fundamental right secured by the Due Process Clause’s
protection of life, liberty, and property. In the eyes of its
critics, including many legal conservatives such as Scalia,
substantive due process is illegitimate because the clause was
designed merely as a procedural safeguard, not as a tool to protect
fundamental rights. But as his questioning of Gura indicated,
Scalia ultimately set aside those qualms in the McDonald
case, joining three other justices in relying on a substantive
interpretation of the Due Process Clause in order to strike down
Chicago’s handgun ban. Only Justice Clarence Thomas voted to follow
the original meaning of the Privileges or Immunities Clause in that
I was reminded of this jurisprudential maneuvering when reading
Justice Scalia’s dissent yesterday in the Defense of Marriage Act
case United
States v. Windsor
. In it, Scalia not only accused the
majority of harboring a “diseased” and “exalted conception” of
judicial supremacy by striking down Section 3 of DOMA, he attacked
his colleagues for committing the crime of substantive due process,
the very approach he himself so recently “acquiesced in” when
striking down a gun control law.
Scalia did not acknowledge that particular inconsistency.
Instead, he attacked Justice Anthony Kennedy’s majority opinion for
its overly broad reading of liberty and for its corresponding lack
of deference to the elected branches that had duly-enacted the
Defense of Marriage Act. This case, Scalia declared at the outset
of his dissent, “is about the power of our people to govern
If the overriding theme of Kennedy’s DOMA opinion is the
protection of liberty, the theme of Scalia’s dissent is respect for
majority rule. “The Constitution does not forbid the government to
enforce traditional moral and sexual norms,” he wrote, citing his
dissent in Lawrence
v. Texas
(2003), the case where he voted to allow states
to criminalize homosexual conduct. As for placing restrictions on
the recognition of gay marriage, “We might have let the People
It’s a familiar conservative legal argument, drawn from the same
philosophy of judicial deference to the will of the majority that
has motivated many other thinkers on the right, including Robert
Bork, who famously ranked majority rule higher than individual
rights in his conception of the American system. “In wide areas of
life,” Bork wrote in his bestselling book
The Tempting of America
, “majorities are entitled to
rule, if they wish, simply because they are majorities.”
Bork’s majoritarian approach prompted a
back in 1986 by the libertarian political scientist
Stephen Macedo that I have long considered to be a definitive
nutshell summary of the difference between conservative and
libertarian legal thinking. As Macedo put it, “When conservatives
like Bork treat rights as islands surrounded by a sea of government
powers, they precisely reverse the view of the Founders as
enshrined in the Constitution, wherein government powers are
limited and specified and rendered as islands surrounded by a sea
of individual rights.”
The controversy over DOMA rests on a very similar philosophical
split. According to Justice Kennedy, “though Congress has great
authority to design laws to fit its own conception of sound
national policy, it cannot deny the liberty protected by the Due
Process Clause of the Fifth Amendment.” According to Justice
Scalia, “even setting aside traditional moral disapproval of
same-sex marriage (or indeed same-sex sex), there are many
perfectly valid—indeed, downright boring—justifying rationales for
this legislation.”
A sea of individual rights or a sea of government powers?
Kennedy chose the former, Scalia endorsed the latter.