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Scalia more likable than his opinions

By Paul Choiniere

Publication: The Day

Published March 23. 2014 4:00AM

As an editorial writer, I have several times written opinions critical of Associate Supreme Court Justice Antonin Scalia's decisions.

In Lawrence v. Texas in 2003, in which the Supreme Court by a 6-3 decision struck down a sodomy law in Texas as unconstitutional - concluding the state had no business regulating what goes on in the privacy of a bedroom between adults - the justice issued a mean-spirited dissent. He suggested it was OK for democracy to be used by the majority to discriminate against a minority.

"(The Court) has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct," he wrote. "The Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed."

In 2010, Scalia joined the 5-4 majority in the Citizens United decision, declaring as unconstitutional laws restricting corporate and special-interest spending in elections. The ruling opened a floodgate of money and negative advertising that continues to distort our electoral process. It was a terrible decision, in my humble opinion and that of the four minority justices.

Yet in a speech delivered at the U.S. Coast Guard Academy in New London last Tuesday, it was hard not to acknowledge the purity of Scalia's approach to constitutional law. He is passionate about it.

Scalia told the cadets that morality - be it about discrimination against homosexuals or the influence of money in politics - plays no role in his legal decisions. His guiding star, he said, is the U.S. Constitution and his originalism philosophy. When assessing the constitutionality of a law, Scalia said he considers only what those who wrote and ratified the applicable constitutional provision intended.

It is a philosophy frozen in time, one that refuses to acknowledge the validity of any interpretation of the Constitution that accounts for a changing society and norms.

But he sure was engaging and often funny in defending it.

Asked about his vote upholding the constitutionality of flag burning, Scalia said his originalism approach sometimes takes him to places he would rather not go.

"God knows, I've reached enough decisions I don't like. I must not be applying my own prejudices or I'd be a happier man," said Scalia, drawing laughs. "I'm handcuffed; I can't do the nasty, conservative things I would like to do to the country. I can't send those flag burners to jail like I would like to do if I were king."

Some of his comments probably surprised his conservative supporters in the audience. He essentially pooh-poohed all the "hand wringing" about the growth of executive power and President Obama's threat to wield it to get things done.

"The imperial presidency? Give me a break! I've been in Washington a long time and anyone who has been in Washington knows that the 500-pound gorilla is the Congress," he said.

As for state's rights, a rallying cry for the Tea Party movement, the 78-year-old jurist suggested that horse escaped the barn long ago. He pointed to the adoption of the 17th Amendment in 1913, which required the direct election of senators, previously appointed by state legislatures. When controlled by the legislatures, senators looked out to protect the powers of the state, he said.

"You can trace the decline of state's rights through the rest of the 20th century," Scalia said. "Many of the senators (today) have no connection whatsoever with state government. Indeed, some have no connection with the state, they just move there to get elected."

Won't the high court assure protection of state's rights?

"My court? What are you crazy?" said the justice to more laughter. "I'm a fed. I'm appointed by a federal president, confirmed by a federal Senate, federal power is my power, you think I would have any incentive to abridge federal power?"

His presentation was, well, likable; even if I still don't like many of his rulings.

Paul Choiniere is editorial page editor.

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