There are two types of judicial conservatism: the normal kind, in which you defend the established moral values of the day, and Justice Antonin Scalia’s definitely not normal version. He published a new book this year, so you can get a firsthand account of his form of textualism (“strict adherence to a text,” per the World English Dictionary). The trouble is, that’s a serious misnomer:
. . . that means he applies the words in the Constitution as they were understood by the people who wrote and adopted them. . . . “The death penalty? Give me a break. It’s easy. Abortion? Absolutely easy. Nobody ever thought the Constitution prevented restrictions on abortion. Homosexual sodomy? Come on. For 200 years, it was criminal in every state.”
That goes far beyond the text of the Constitution. It goes into the societal mores of the 18th century – which, by the way, is over. Of course, if Scalia decides to wear pantaloons in public to maintain consistency on this, I’ll give him a pass.
Scalia used this line to attack legislating from the bench, contrasting his approach with that of a fictional justice who twists the meaning of the Constitution to suit his own worldview. He went on to argue that citizens should lobby Congress on the above noted matters, including attempts to create new amendments. (Strict constructionism allows for amendments.) That’s perfectly fair. Judicial decisions should be based on existing law; otherwise its purpose is diminished.
Scalia’s problem is that the expansion of reproductive and gay rights can very easily be based on existing law, specifically those protecting individual privacy and rights reserved to the people. Roe v. Wade was grounded in the Due Process Clause of the 14th Amendment, as was Lawrence v. Texas. Part of Scalia’s dissent on that last one was that the court ignored Americans who did not wish for sodomy to become “mainstream.” Who was playing politics?
By putting himself in the mindset of a “framer” on these matters, Scalia is essentially avoiding the realities of the 21st century, and in some ways the Constitution itself. Those framers may have staunchly opposed abortion and sodomy, but would they have been any more able to argue their way into certain restrictions on either on constitutional grounds than today’s courts? As much as he may hate to admit it, these types of legislation need constitutional backup, and they are capable of getting it.
The admission of constitutional backup to said legislation is not judicial activism. That would be trying to weasel your way out of it because the issue at the heart of the legislation makes you feel icky. If the text of the Constitution trumps sexual behavior circa 1787, don’t look too shocked.
