Antonin Scalia Talks Sodomy

ScaliaAt an Ohio State lecture on interpreting the Constitution:

 “My burden is not to show that originalism is perfect but to show that
it beats the other available alternatives. Did any
provision of the Constitution guarantee a right to abortion? No one
thought so for almost two centuries after the founding. Did any
provision in the Constitution guarantee a right to homosexual sodomy?
Same answer.”


  1. Rucka says

    This of course are the same documents/writers that said black people were only 3/5 human … and women couldn’t vote… that stood for 100 years or so, no? So I ask Justice Scalia, what’s your point?

  2. K in VA says

    Scalia is cruder and more vicious than other justices. But a majority of them would vote with him against marriage equality. And so it will be for many years to come.

  3. MackMichael says

    Oh, but there is some evolution; note how Scalia evokes a distinction for sodomy. Now the constitution did not make provisions for “homosexual sodomy,” while provisions for heterosexual sodomy have somehow made it through to Scalia’s interpretation of the document.

  4. Willig says

    Scalia is scum. I agree with Rucka, but Scalia would argue that the constitution today has been amended to prohibit slavery and give the vote to women, and would further argue that the constitution should be amended to prevent the enactment of laws that criminalize “homosexual” sodomy, not be interpreted such that it cannot be made illegal. However, what Scalia wants is not possible politically and it never was. The political will to amend to exclude slavery took a civil war to produce.

    What concerns me about the Supremes is the right wing reactionary catholicism that 5 of them practice.

  5. Peter says

    Just a bit of a qualification to Rucka’s point. There is no doubt that most, if not all, of the framers of the Constitution were racist and believed in black inferiority. However, the Three-Fifths Clause did not define black people as three-fifths human beings. The number of representatives each state had was based on the state’s population. The framers argued that, in calculating this number, black people should count as three-fifths of a citizen. While one could speculatively assert that this was tantamount to the framers saying that black people were not full human beings, the actual wording of the compromise does not explicitly say so.

  6. Wes says

    Exactly, Rucka.

    I’m tired of the constant deification of ‘the founding fathers’ and the obsession to restore America to its moment of conception.

    Its goddamn insulting that people this stupid are on the supreme court.

    For hundreds of years the constitution didn’t guarantee SHIT to anyone who wasn’t a straight white christian male. So why exactly am I supposed to give a fuck about this right wing 1700s fetish? Let them play with teabags and reenact civil war battles, the rest of us can focus on the 21st century.

  7. Jonathan says

    And this man is still alive, why? Are there no crazy militant liberals out there?

    The funny thing about Scalia is that he is a strict constructionist until it doesn’t suit him anymore.

  8. DR says

    I may not agree with him, but he’s clearly a hell of a lot smarter than most of the people posting here. Knock off the death wishes, it’s immature and disgusting.

  9. peterparker says

    Scalia is a good example of why Supreme Court justices should have term limits. I say let ’em serve for 12 years before they have to step down. That would prevent dinosaurs like Scalia and Thomas from completely bogging down the system for a generation.

  10. stephen says

    The Constitution is a framework to protect and provide freedom… it doesn’t mention a lot of particulars. This “cherry-picking” approach to Constitution isn’t far off from the “cherry-picking” approach many apply to religious practice as well.

    It’s hard to fathom how the highest court, designed to protect us from religious influence has become itself so slanted by the same…

  11. Paul R says

    What a strange argument to make. The Constitution is a brief document that doesn’t cover countless areas related to people’s bodies and/or modern life. Examples include euthanasia, capital punishment, and immigration. Because the Constitution doesn’t cover the Internet, does that mean we don’t have a right to use it? Scalia is taking a ludicrous approach to frame his argument.

    I’ve never understood people who view the Constitution as a fixed document that shouldn’t change with time. Given the challenges that went into its writing, I doubt most of the founding fathers would want or expect us to follow it to the letter 225 years later.

    I’d also guess that Scalia doesn’t consider any heterosexual activity to be sodomy. Maybe aside from rape, though who knows—rape isn’t covered by the Constitution either.

  12. patrick nyc says

    DERRICK, my first chuckle of the day.

    Scalia is living proof only the good die young, a walking advertisement for birth control and a lesson to parents everywhere, do not drop your children on their heads on a regular basis.

    I wonder what the Constitution says about Churches covering up and enabling the rape of children?

  13. arundel says

    I really dislike Scalia and certainly despise his views on these and other issues. But to take a step back… it amazes me that any Supreme Court Justice, but Scalia especially, can be out on the lecture circuit exposing his biases and utter lack of openmindedness on these issues. When these issues come before the Court, you can easily assume how he will judge them regardless of the facts and arguments that will be presented. He’s basically saying he cannot be convinced to see it any other way. During confirmation hearings, all the nominees are quick to say they can’t comment on an issue that might come before the court but Scalia does it all the time now that he is on the bench. In my opinion it is just wrong – and beneath the institution – for him to be out there bashing groups and issues that may very come before him to judge. His views are clearly expressed in the context of his written decisions which is where they should be. He should follow the model of some other Justices who give lectures and speak generically about the law, process, and the Court as an institution. In a way it is satisfying to see Scalia bring scorn upon himself, but I think it is more important to uphold the dignity of the Court since he is appointed to it for life.

  14. Patrick says

    If Scalia wants to go down that road, I defy him to find the word “marriage” in the Constitution – there’s no explicit provision for ANYONE to get married based upon his logic. Or how about my favorite (NOT!) that corporations are considered as people for free speech etc rights? That one was made up out of whole cloth, but it suits his world view so it’s A-OK. I wish the court would just admit they make sh$% up all the time, and end this silly argument about original intent.

  15. TANK says

    It’s Junior Baby Hughey! Beefy, for short. UGh, originalism…I’d like to ask lawyers who fall for this “theory” of jurisprudence if they understand what logic is. If they’ve ever taken a logic class, or something close. If they can use words…instead of just emotions dressed up like sentences. Specifically, if they know what underdetermination of meaning means, and how it effects all natural languages (the languages that laws are written in).

  16. TANK says

    And if you think that’s not true, ask yourself…. How is it that originalists can have lasting legitimate disagreements about the meaning of an amendment or clause? Originalism’s not a religion, is it? So just repeating your “translation” of choice doesn’t resolve the dispute.

    More importantly, can any originalist distinguish between what they believe the interpretation of the meaning of the constitution amounts to and the meaning of the constitution? No? How about their interpretation of what the founding fathers meant and what they actually meant? That is, can they ever be mistaken based on a standard other than their disagreement with what they said previously (i.e., a completely arbitrary criteria adopted solely because of their background beliefs and language), and by what criteria? If not, it’s all rather silly and trivial, isn’t it. Infallibility…

  17. TANK says

    “Antonin Scalia was born in Trenton, New Jersey, and attended the prestigious Xavier High School, a Catholic and Jesuit school in Manhattan. It is unknown whether Scalia was abused by any of the Catholic priests he studied under, but, as some legal scholars have noted, the effects of such abuse might be a possible explanation for his otherwise puzzling legal theories.

    After graduating from Georgetown University, Scalia went on to study law at Harvard Law School. Harvard is considered by many to be a good school. It is one of many good schools. And there are many Harvard graduates who realize that attending Harvard does not necessarily make you the smartest person in the room. Scalia is not this sort of Harvard graduate.

    Scalia began his legal career a law firm in Cleveland, Ohio, before becoming a Professor of Law at the University of Virginia in 1967. Being an ambitious dick who wanted to have a big dick impact the world, Scalia found the academic environment too confining. He soon left academia for the profession most suited for dicks: politics. And if one wanted to be a political dick in the 1970’s, there was only one place that mattered: the administration of President Richard Nixon, the most fertile breeding ground for dicks in the history of the United States.”


  18. nic says

    how did this stupid, stupid, stupid shit get elevated to the position he is in? oh, yeah, it was by a repug president. for those who say party dosn’t matter, get a clue.

  19. says

    No flying in planes or even taking trains or cars. Certainly no cell-phones or computers or even regular phones. No radio or TV. Let’s hope if Scalia does get that debilitating stroke, he has no medical intervention invented post 1800.

  20. brennigans says

    Case opinions written by Scalia are always so unprofessional and immature, they could be read as humorous satire if they weren’t so frighteningly real.
    It’s also frightening how ignorant he is of American history. Abortion was quite common among nearly all non-Catholic religious groups for the first 100-150 years that our country has existed. Most of the founding fathers undoubtedly had no problem with the practice, and considered it a normal form of birth control.

  21. Will says

    It continually amazes me that arch-conservatives like Scalia, all in favor of small, unintrusive government, do NOT seem to get that the judically-mandated developments they so dislike (abortion rights, gay rights, etc.) occurred BECAUSE of government interference in people’s private lives. They are perfect examples of the need of an independent judiciary to protect the rights of the minority from the depradations of the majority. I simply cannot take him seriously, intellectually-speaking, because his position is clearly that government interference is warranted when it concerns behavior he doesn’t like. All his talk about “originalism” doesn’t change that.

  22. jessejames says

    Scalia is a very vulgar man. He shares that quality with Dick Nixon who at least kept his vulgarity private.

    I’m guessing he has penis envy, or large-penis envy. That’s why he talks like a big dick.

  23. candideinnc says

    At the Jefferson Memorial there is inscribed a quotation to the effect that it is the height of stupidity is retaining laws on the basis of their age. Just because things were done a certain way a hundred years ago says nothing about the wisdom of the principle. Each age must reflect anew on the needs of the times. Jefferson said this. Scalia missed that class. The Founding Fathers were not nearly the fatheaded fools Scalia takes them for.

  24. says

    There’s no right to have children in the Constitution.

    There’s no right to walk down the street in the Constitution.

    There’s no right to eat broccoli in the Constitution.


  25. RedCedar says

    “note how Scalia evokes a distinction for sodomy. ”

    That might have something to do with a question & answer session he experienced at a university a couple of years ago where a law student specifically asked him, “Do you sodomize your wife?”

    Scalia chose not to answer…..

  26. STeve says

    Actually, all of those questions about, “does the Constitution grant a right to ____”, are answered explicitly in the Constitution. The 9th amendment says, very clearly, that the absence of specific mention of a right in the constitution, SHALL NOT be interpreted as indicating the nonexistence of that right. And, of course, ALL powers (and rights) that are not explicitly mentioned in the Constitution, are retained by the people. Hence, if something is NOT mentioned in the Constitution, that power or right is retained by each person, not to the government.

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