A Federalist in the Supreme Court?

Following my comments you will find an article from the AP regarding the seizing of American reporters' materials by federal marshalls at a speech given by Supreme Court Justice Atonin Scalia.

The honorable Antonin Scalia. Oh, what a work is he! This ultra conservative member of our United States Supreme Court is a man whose personl views seem to be reflected consistently in his rulings. Do they also reflect the law? Let me give you some material and ideas to help you decide.

First of all there is a movement amongst many elite lifelong conservatives of our country whom whole heartedly believe that America has been misguided in interpretting our Constitution and Bill of Rights. Their argument put plainly is that the Constituion is meant to reflect only the ideas and ideals of our Founding Fathers, and only within the limited context in which they were originally written and understood. So, despite the two hundred and some year history of our Constitution and Bill of Rights being consistently interpretted by our courts as living documents (this idea of 'living documents' is the most important concept I am presenting to you here) these men and women believe that the only correct way to interpret these fundamental doctrines of our society is to base our current laws upon them in exactly the same way in which Washington, Jefferson, Adams and the other founders of our country understood them and intended them to be understood in the late eighteenth century. In other words Scalia and those who agree with him believe that men and women of the twenty-first century should live with a static and unchanging understanding of our Constitution and Bill of Rights. They want a society which does not allow for any interpretation of the principles of these documents to refect our current society. Rather they prefer that our understanding of these precepts remains inert and unvarying from their assumed intent when they were first written. This is a dangerous and frankly unorthodox approach to how we in America, in fact Western civilzation as a whole, has traditionally viewed and acted upon such documents. Including our Forefathers.

A couple of years ago I ran across an essay about painting in the Age of Enlightenment. It spoke of many things but in particular it focused on how art changed at the time of the American and French Revolutions. Art, which had always reverenced women, had made a substantial and polarizing swing to idolizing men, and in doing so reflected current political thought. It was especially apparent in French art in which men now played the dominant role - you need only view a few of Jacques Louis David's work's to understand that the new classicsm in the arts was all about men. View, for instance, the painting the 'Death of Socrates' and you will see that nobility is found exclusively in masculine prowess and male beauty - and womankind is bequaethed a subservient role or none at all. Our Forefathers viewed this art and understood it's context reflected a societal change. Jefferson in particular collected extensively and brought these paintings and their revolutionary ideas to the young American Republic. The ideals portrayed in the paintings and politics were adopted by America's founders as the model of the perfect classical state, the ideal! And it was a patriarchal society.

Why an art lesson? Well, first of all to remind us that society at the time of Jefferson, the same society which wrote that all men are entitled to freedom of speech, the pursuit of happiness and that all men are created equal was speaking about a very limited group of persons. Whom were they speaking of? White, heterosexual, upper class, eduacated and free men. And of whom were they seeking this freedom and equality from? The authority of the King of England and his Church. Whom was not included? Anyone not fitting the narrow definition and that included: women, Africans, in fact most if not all non-caucasian non-European decendant men, lower economic and social classes, certain religious groups (freedom of religion did not mean freedom to belong politically) and most certainly any man whom could be recognized to deviate from the proscribed morals of the era. So, homosexual men if known, certainly had no vote. But realistically homsexual men were almost completely underground. At this time in history only a few homosexual men, those of the old aristocracy of Europe, ever gave any public credence to their natural sexual orientation. It was a inviting death to acknowledge ones true self, for even if you were above usual legal punishments due to your rank, you were never above assisination. Open homosexuality in Europe was a death certificate.

I point this out because The Honorable Antonin Scalia, in his speech which was recorded by reporters whom were accosted for making those recordings (Scalia has little regard for the Fifth Estate or Freedom of the Press) said this:

"Question comes up: is there a constitutional right to homosexual conduct? Not a hard question for me. It's absolutely clear that nobody ever thought when the Bill of Rights was adopted that it gave a right to homosexual conduct. Homosexual conduct was criminal for 200 years in every state. Easy question."

Well, I vehemently disagree. It is not an easy question for anyone except for those whom would have us at the very least back in the closet without any civil rights, if not more happily eliminated all together. But here's the rub for most of you reading this. Scalia's extremism regarding the Constitution and Bill of Rights will hardly effect just the GLBT community of today. Scalia's belief that our country's most precious records of equality should be intrpretted only within the context of the intent of the original writers of these documents, our Forefathers, means that their view of society, limited by the knowledge of the eigteenth century society in which they lived, would and should be our view today. The Constitution and Bill of Rights, he says, were never intended as 'living documents' capable of expanding their original concept to be relevant with today's society and our understanding of ideas like "all men are created equal" must more or less remain unchanged.

Thankfully, there are many men and women, and this is proved by the tradition of how our courts and legislatures have worked for the last two centuries, whom reject the argument that our Founding Fathers intended for the Constitution and Bill of Rights to be static contracts which encompass only the beliefs and understandings of the time they were written. Instead, we believe these masterful writings were indeed left unrestricted to ensure their growth along with the growth of our fledgling country. Definitions of what 'equality' and 'pursuit of happiness' are deliberately left vague which suports the argument that their authors did indeed understand that our Constitution and Bill of Rights were the framework of our new Democracy and not the entire edifice. Time and again through our history the tradition of being open to ever broader understanding of our treasured ideals has proved their groundwork to be elegant and sound, well capable of supporting the ever branching structure of our Nation's family tree.

Equality has moved forward from our Founding father's narrow definition. It has progressed to understand that the color of one's skin has no bearing whatsoever upon one's ability to think, learn, worship or lead. And again, with end of segregation, we have conquered obsolete views that one's racial heritage can excude you even in part from participation in our society. Likewise, women have no longer to be at the beck and call nor the mercy of men, either as wife and homemaker or entrepneur and leader. They too have been recognized to be eqaul in all aspects to their male counterparts in our society. And, so it must and will be for gays and lesbians, transgendered and bisexuals. The false inferiority card which we have been dealt in the past will be withdrawn; for gays and lesbians, too, are citizens and must be treated equally in America both today and tomorrow.

Judge Scalia is the worst kind of a bigot. He supports his horrific views by distorting the facts, rewriting history to support his distortions and, I believe, influencing court decisions with his personal moral and religious views. His prejudice and his record of voting will eventually be looked back upon with the same horrorific disbelief with which we view those persons whom voted against integregation, whom supported slavery and whom denied the inherent dignity of women: lack-luster ineffectual zealots. But are Scalia and his ilk yet a danger to the living, breathing, growing documents of our Constitution and our Bill of Rights? Absolutely. This man, and others like him, have been granted incredible power which may be used for good or ill. And so it is up to us, individually and collectively, to use our greatest asset and privelege - our vote - to insure that in future those whom we elect will appoint men and women whom believe as we do. That indeed, ALL men and women (of all ethnic, religious, gender and sexual orientation) are CREATED EQUAL!


Initial Report Backed Seizing Reporters' Tapes Of Scalia Speech To Conservative Christians
by The Associated Press

Posted: June 20, 2007 - 7:00 pm ET

(Hattiesburg, Mississippi) Federal marshals broke no laws when seizing tape recordings from reporters from The Associated Press and the Hattiesburg American during a 2004 speech by Supreme Court Justice Antonin Scalia, an initial agency investigation found.

The marshals service's general counsel "reviewed the allegations and determined that there were no violations of the laws," according to a summary report of the April 2004 investigation, according to the Hattiesburg newspaper.

Later that year, the Marshals Service acknowledged in a lawsuit settlement that it violated the federal Privacy Protection Act, which protects journalists from having their work product seized by the government.

The conflict began in April 2004 when a deputy marshal demanded that the two reporters erase recordings of Scalia's remarks at Presbyterian Christian School.

In one portion of the speech to law students at the university Scalia brought up the issue of homosexuality. (story)

"Question comes up: is there a constitutional right to homosexual conduct? Not a hard question for me. It's absolutely clear that nobody ever thought when the Bill of Rights was adopted that it gave a right to homosexual conduct. Homosexual conduct was criminal for 200 years in every state. Easy question."

The reporters had not been told before the speech that they could not use tape recorders, and their news organizations sued the agency.

The lawsuit ended in September 2004 with the Marshals Service acknowledging the law violation and saying it had created new procedures for working with the media. Under the new policy, marshals have "no role or responsibility regarding photography, audiotaping and videotaping at such events except when the personal security and safety of the federal judicial officer is believed to be in jeopardy."

The newspaper had requested the investigation report and other documents in 2004 under the Freedom of Information Act, but the Marshals Service had refused. The Justice Department ordered the papers released last month.

Leonard Van Slyke, the newspaper's attorney, said the documents don't say whether disciplinary action was taken in the case.

"I would have expected there to be some kind of disciplinary action taken against the marshal or her supervisor because they failed to understand their duty," Van Slyke said.

During Scalia's speech, the deputy marshal, Melanie Rube, took a digital recorder from AP reporter Denise Grones when Grones resisted her demand to erase recordings of the justice's remarks. Grones then showed her how to erase the recording. Hattiesburg American reporter Antoinette Konz then surrendered her tape and, after the speech, got it back only after erasing it in front of the marshal.

The marshal said she acted at the direction of Scalia.

The exchange occurred in the front row of the school auditorium while Scalia spoke on the Constitution. Scalia later apologized and said he would make it clear in the future that recording his remarks for the use of the print media would not be a problem.

Also among the documents are copies of apologies that Scalia sent to Konz and Grones.

The release of the documents is a victory for the newspaper and the public, Van Slyke said.

"I think it's important that the record be complete and the public have access to what actually happened and the statements people made," Van Slyke said.

©365Gay.com 2007