The last time a vice presidential hunting trip made the headlines, Antonin Scalia was along for the ride. The associate justice is back in the news today -- not for firing a gun at a buddy but for shooting off the weapon that sits between his nose and his chin.
In a speech in Puerto Rico sponsored by the Federalist Society, Scalia blasted away Monday at those who believe that the meaning of the Constitution evolves over time. "That's the argument of flexibility, " Scalia said, "and it goes something like this: 'The Constitution is over 200 years old and societies change. It has to change with society, like a living organism, or it will become brittle and break.' But you would have to be an idiot to believe that."
Among the "idiot" class, it would seem, are Justices Anthony Kennedy, John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer, who joined in the 2003 Lawrence v. Texas opinion that invalidated a Texas statute that criminalized consensual sex between gay men. That opinion relied, at least in part, on what Kennedy called "an emerging awareness" in law and society that liberty gives "substantial protection" to the ways in which adults conduct their private sexual lives.
"Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific," Kennedy wrote for his colleagues in Lawrence. "They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom."
Scalia filed a long dissent in Lawrence, arguing that "homosexual sodomy" wasn't a fundamental right when the Constitution was written and therefore can't be a fundamental right today. The majority's decision, he said, was nothing other than "the product of a court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda."
Or, as Scalia himself once said, "Quack, quack."
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