Responding to the Other Side of Today’s Marriage Decision: ‘Intellectual Prostitution’, the Fourteenth Amendment, and the Rule of Law
June 26, 2015
And Scalia’s dissent has only proven how asinine the arguments against marriage equality have always been.
…the Court ends this debate, in an opinion lacking even a thin veneer of law…Buried beneath the mummeries and straining-to-be-memorable passages of the opinion is a candid and startling assertion: No matter what it was the People ratified, the Fourteenth Amendment protects those rights that the Judiciary, in its ‘reasoned judgment,’ thinks the Fourteenth Amendment ought to protect.
So his argument is that it isn’t necessarily wrong, but the court shouldn’t do it. Kind of.
I’m not sure you’ve understood Scalia’s point. I haven’t read the full dissent, but just based on your excerpt, it seems clear that he’s saying that the Fourteenth Amendment, as ratified, did not mean what the majority is now saying it means. (Did a supermajority of states think they were responding to slavery and the Civil War by constitutionally requiring same-sex marriage?) The point of having a written constitution is that its meaning is knowable and reliable. If five judges say that it means one thing one day and another the next, and just impose whatever policy they prefer, then it represents not the rule of law but the rule of men.
Bonus: In response to my query, the author agrees that to reach this result, Justice Anthony Kennedy had to commit “intellectual prostitution”, but “I do not see that as a bad thing”!