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Antonin Scalia’s Gay Marriage Dissent Turns One Year Old

On June 26, 2015, the late Supreme Court Justice Antonin Scalia wrote one of the most prescient and troubling legal opinions of his career. A year later, it is time for the American people to act on its warnings.

Obergefell v. Hodges, the watershed ruling that stripped the rights of states to legally define marriage solely as the union of a man and a woman, was decided exactly one year ago today. The case was regarded by many not only as a death omen for the family unit in the United States, but also for the freedom to express and profess a truth that had been accepted by every civilization in human history until just a few years before Justice Kennedy’s majority opinion.

In the year since the ruling was issued, we’ve seen Kim Davis go to jail following a denial of religious accommodation regarding marriage licenses. We’ve seen governors bullied into vetoing basic First Amendment protections for their citizens, and, as Travis Weber indicates in an op-ed at the Daily Signal, we have seen not the only forced compliance of states and citizens with the opinion of the razor-thin majority, but the demand for public approval for same sex unions.

But even more alarming than these developments are the broader warnings offered by Scalia’s dissent in the case, first among them is the Court’s overriding “threat to American democracy.”

“Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court,” Scalia wrote last June. “This practice of Constitutional revision by an unelected committee of nine, always accompanied … by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence.”

Scalia then points to the period leading up to the court’s ruling as the true triumph of liberty, rather than the decision itself.

“Individuals on both sides of the issue passionately, but respectfully, attempted to persuade ther fellow citizens to accept their views,” he wrote. “Americans considered the arguments and put the question to a vote. The electorates of 11 states, either directly or through their representatives, chose to expand the traditional definition of marriage. Many more decided not to.”

“Win or lose, advocates for both sides continued pressing their cases, secure in the knowledge that an electoral loss can be negated by a later electoral win.”

What Justice Scalia described was a true republic in action, at least until the judiciary put a stop to it. The greater problem is that, as devastating as the decision may yet prove to be for the religious liberty of people and institutions who still affirm a traditional, organic and conjugal understanding of marriage, the precedent set in this case and others by the federal judiciary point to a truth antithetical to our political and historical identity as Americans: we are being governed less and less by our own consent.

While conservatives and constitutionalists lauded the court’s decision in U.S. v. Texas earlier in the week, they would do well to remember two things:

1. The ruling itself was extremely narrow, meaning that similar cases, like Arizona Dream Act Coalition v. Brewer, in other circuits will likely still stand.

2. “Victories” like this are becoming fewer and further-between.

One such instance of judicial usurpation from January involves a case wherein the Supreme Court struck down sentencing laws that were debated and passed by several of the states, and up until the retroactive application of a separate case left the citizens of those states deprived of their right to decide upon the application of criminal sentences.

Another such case involves an illegal alien whose deportation was blocked after a ruling of the Federal Ninth Circuit Court redefined the term “good moral character,” thereby allowing for leniency and allowing him to stay. The United States Congress passed immigration laws which would have sent the offender home, until the federal judiciary simply re-interpreted the law, and invalidated the congressionally passed statute, despite its clear constitutionality.

But the primary issue that we see before us stems both philosophically and legally from the Obergefell decision itself. In April of this year, the City Council of Charlotte, North Carolina passed a restroom ordinance that the democratically elected governor and state legislature saw to be a potential threat to the freedom of private businesses and the security of vulnerable citizens. In response, the legislature passed and governor signed into law a measure that would have prohibited local governments in the state from infringing upon the rights and privacy of private citizens.

Cue the executive branch. In what must have been a land-speed record for such an issue, not only did a pack of cultural cronies descend upon the state with calls of discrimination, but the Department of Justice and the State simultaneously threw the issue to the courts for adjudication.

A few weeks later, in response to a related public school fiat issued by the Obama administration effectively mandating schools to adopt the kinds of policies that the duly elected officials were trying to avoid, 11 states filed lawsuits against the administration over the matter.

What this means is that, a year after the American people were robbed of the ability to discuss and pass corresponding legislation regarding the institution of marriage, they now stand to be stripped of the right to deliberate the very nature of man and woman, or of the protection of privacy and safety.

As disappointing as this is for anyone who wonders if we can still keep this republic, following Dr. Benjamin Franklin’s warning, it should come as little surprise to anyone who has been paying attention. In Stolen Sovereignty, CR Senior Editor Daniel Horowitz outlines in detail just the right of the American electorate to decide matters of vast importance like basic biology, immigration, criminal justice has already started eroding before our eyes, thanks to an out of control and activist-ridden judiciary.

While Obergefell was far from the cause of the greater disease in effect, it remains the most recent and visible symptom.

But there is a little-known constitutional trap door to escape the dungeon of judicial oligarchy. Congress has the power to strip the federal courts of their jurisdiction, relegate such issues to state courts, and break up the federal influence on these matters. Our cousins across the Atlantic made a similar move Thursday when they voted to reclaim the power of their vote from a bureaucratic oligarchy in Belgium. After decades of having laws dictated by a largely unaccountable body they decided it was time to demand their own self-rule. With Scalia’s prescient dissent fresh in mind, it is high time that Congress reclaim its authority and that the American electorate take back its own sovereignty. (For more from the author of “Antonin Scalia’s Gay Marriage Dissent Turns One Year Old” please click HERE)

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Scalia Defends the Constitution, Questions the 17th Amendment

Photo Credit: Flickr

Photo Credit: Flickr

Supreme Court Justice Antonin Scalia reaffirmed his commitment to defending the Constitution while speaking to the Federalist Society in his home state of New Jersey on Friday.

Scalia, the preeminent conservative firebrand of the court, told the audience it is the structure of the government under the Constitution and not the liberties guaranteed under the Bill of Rights that makes us free.

As reported by The Daily Signal: “Every tin horn dictator in the world today, every president for life, has a Bill of Rights,” said Scalia, author of the 2012 book Reading Law: The Interpretation of Legal Texts. “That’s not what makes us free; if it did, you would rather live in Zimbabwe. But you wouldn’t want to live in most countries in the world that have a Bill of Rights. What has made us free is our Constitution. Think of the word ‘constitution’; it means structure.”

Congress passed the first ten amendments to the Constitution, which became known as the Bill of Rights, during the opening months of its first session in 1789, largely following those proposed by the “Father of the Constitution,” James Madison. They were ratified by the states and became the law of the land in 1791.

Scalia argued that without the division of power created by the Constitution, the Bill of Rights, which guarantees freedom of speech and religion, the right to bear arms, protection against unlawful search and seizures, and trial by jury of one’s peers among other rights, would just be paper promises with no mechanism to enforce them.

“The genius of the American constitutional system is the dispersal of power,” he said. “Once power is centralized in one person, or one part [of government], a Bill of Rights is just words on paper.”

Scalia stands on firm ground with his observation. James Madison wrote in Federalist 51 that the best bulwark against government tyranny is structuring a system where “ambition must be made to counteract ambition.”

He observed: “In the republic of America, the power surrendered by the people is first divided between two distinct governments [federal and state], and then the portion allotted to each subdivided among distinct and separate departments [legislative, executive, judicial]. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.”

Scalia noted that the most profound departure from the dispersal-of-power structure established under the Constitution was passage of the ratification of the 17th Amendment in 1913, which changed the method of the election of U.S. senators to the popular vote rather than by the state legislatures.

The Founders intended the House of Representatives to be the “people’s house” with elections every two years, while senators served for six year terms–their constituency being the state legislature. This ensured that senators would have no incentive to trample on the state government’s authority through federal action.

The Constitution created a federal government with certain enumerated powers, leaving all the remaining authority to the states and the people. Scalia and many other critics believe the federal government has usurped broad authority in powers left primarily to the states.

“What a difference that makes,” Scalia said. “When you have a bill that says states will not receive federal highway funds unless they raise the drinking age to 21, that bill would not pass. The states that had lower drinking ages would tell their senators, ‘You vote for that and you are out of there.’”

Repeal of the 17th Amendment is one of the proposals in radio talk show host Mark Levin’s bestselling book Liberty Amendments.

Regarding interpretation of the Constitution overall, Justice Scalia is an originalist. In other words, he believes that it is not up to courts to re-interpret the nation’s governing document, but follow what the Founders’ intended. If the Constitution or laws generally need revision, it is up to the legislative branch to do so. “When we read Shakespeare, we have a glossary. We don’t think the words have changed there, so why do we think they have changed in the Constitution?” the justice has told audiences in the past.

Justice Scalia is currently the longest serving member on the Supreme Court, having been appointed by Ronald Reagan in 1986. Anthony Kennedy is the only other Reagan appointee still serving on the high bench. (See “Scalia Defends the Constitution, Questions the 17th Amendment”, originally posted HERE)

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Justice Scalia Shoots Down Idea of Leaving the Union: ‘There Is No Right to Secede’

photo credit: us mission genevaLast night, TheBlaze reported that residents of 27 states had filed petitions with the White House to be allowed to secede from the union. As of today, that number has swelled to 47.

But could it actually happen? Do states even have a right to secede anymore? The answer, according to arguably the most respected conservative Justice of the United States Supreme Court, is an unequivocal “no.

Over at New York Personal Injury Attorney Blog, author Eric Turkewitz recounts an interesting story of how his brother, a screenwriter, managed to apparently coax an answer out of Scalia on precisely this topic.

Read more from this story HERE.

Scalia’s comments this weekend open the door to more gun control legislation

Photo credit: US Mission Geneva

Supreme Court Justice Antonin Scalia said Sunday the Second Amendment leaves open the possibility of gun-control legislation, adding to what has become a slow-boiling debate on the issue since the Colorado movie theater massacre earlier this month.

Scalia, one of the high court’s most conservative justices, said on “Fox News Sunday” that the majority opinion in the landmark 2008 case of District of Columbia v. Heller stated the extent of gun ownership “will have to be decided in future cases.”

“We’ll see,” he said.

Scalia’s comments follow the July 20 massacre at the Aurora, Colo., movie theater in which the alleged gunman, with the help of a semi-automatic weapon and an ammunition clip that could hold as many as 100 rounds, killed 12 and wounded 59 others.

His comments also follow those of lawmakers who have called for tougher gun-related laws in the wake of the shootings – most recently New Jersey Sen. Frank Lautenberg and New York Rep. Carolyn McCarthy, Democrats who said Sunday they will introduce legislation this week to “make it harder for criminals to anonymously stockpile ammunition through the Internet, as was done before the recent tragic shooting in Aurora, Colorado.”

Read more from this story HERE.

Publisher’s Note:  Scalia also noted in his interview on Fox News Sunday that an original construction of the Constitution opens the door to gun limitations as well, noting that the Second Amendment allows us only to “keep and bear arms.”  The word “bear” means that the Founders intended some restrictions, at the minimum allowing prohibition of weapons that cannot be carried.


Nugent: “Never Trust a Man in a Black Robe; He Might be Naked Under There”

Yogi Berra said that when you come to a fork in the road, take it. When supposed-conservative Chief Justice John G. Roberts Jr. came to a judicial conservative-liberal fork in the road, he veered left.

With Chief Justice Roberts‘ vote to save Obamacare, I was reminded of what my dad told me more than 50 years ago: Never trust a man who wears a black robe. He might be naked under there.

Unlike other conservatives, I don’t care if his vote to save Obamacare turns into a cash cow for the Mitt Romney’s presidential political machine and galvanizes the GOP. There are some things more important than politics and elections. Striking down un-American, Constitution-violating Obamacare is one of them.

Had Chief Justice Roberts voted along with Justice Clarence Thomas and Justice Antonin Scalia like everyone expected, Obamacare would have been struck down by the Supreme Court. That would have put even more wind in the sails of the Romney campaign.

The bottom line is that Chief Justice Roberts‘ traitor vote will ensure more monumental spending and wasted taxes and put almost 15 percent of the nation’s gross domestic product (GDP) under one of the world’s most bureaucratic, ineffective, incompetent and grossly expensive systems ever devised by man: our out-of- control federal government.

Read more from this story HERE

Photo Credit: DonkeyHotey.