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With Invocation Of Nazi Germany, Scalia Loses Debate Over Constitution

July 22, 2013
Perhaps Justice Antonin Scalia is unaware of Godwin’s Law, the internet aphorism holding that if a discussion goes on long enough, someone will inevitably compare whomever or whatever he dislikes to Nazi Germany or Hitler, at which point any useful debate is pretty much over and the person making the Nazi comparison automatically loses the argument.  Because there’s this.
 
According to an Aspen Times report on a speech Justice Scalia gave to the Utah Bar Association on Saturday:
 
Scalia opened his talk with a reference to the Holocaust, which happened to occur in a society that was, at the time, “the most advanced country in the world.” One of the many mistakes that Germany made in the 1930s was that judges began to interpret the law in ways that reflected “the spirit of the age.”  When judges accept this sort of moral authority, as Scalia claims they’re doing now in the U.S., they get themselves and society into trouble. 
 
The Aspen Times noted that Scalia cited several issues that have been litigated in the justice system, including a woman’s right to choose to end a pregnancy and laws against “homosexual sodomy,” and claimed that judges are unqualified to resolve them.   According to the Aspen paper, Scalia questioned “the propriety, indeed the sanity” of having judges render such “value-laden” decisions.
 
Scalia’s inflammatory language—perhaps no surprise in a talk entitled “Mullahs of the West”—reveals a desperate attempt to claw back some ground in a battle over the meaning of the Constitution that he is losing.  Progressive constitutional victories in the courts of justice, as well as the court of public opinion, are being won not because they are simply “the right thing to do,” but because they are based in our Founding charter’s text and history.  Justice Anthony Kennedy’s opinions for the Supreme Court protecting the rights of gay men and lesbians have been grounded in the Constitution’s guarantees of liberty and equality.  Justice Ruth Bader Ginsburg has made a powerful case for protecting a woman’s reproductive choices under the constitutional guarantee of full and equal citizenship for women.   Justice Scalia might have thought his purist, professed “originalist” fidelity to the Constitution was a trump card to be used whenever faced with a judicial outcome he doesn’t like.  But when consistently confronted with arguments demonstrating that the original meaning of the Constitution’s words support, for example, marriage equality, or laws prohibiting employment discrimination against women?  Scalia pulls out the oh-so-ineffective Nazi Germany meme.
 
The fact is that “We the People” made certain “value-laden” decisions when ratifying the Constitution—that democracy was better than dictatorship, that freedom was better than oppression by class or caste—and successive generations of Americans have amended our national charter to ordain and establish even more deeply the principles of equality, liberty, and democracy upon which our country was founded.   When judges apply the Constitution’s text and history, they are not ruling based on any sort of usurped “moral authority” or an inferred “spirit of the age.”  They are doing their jobs, according to their judicial oaths.  To suggest this is akin to the social and governmental system that wrought the Holocaust and previously unimaginable tyranny is deeply offensive, and reveals that Justice Scalia has no good response to arguments that the text and history of the Constitution support fundamental equality. 
 
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