During oral arguments on Tuesday, March 26th, concerning the right of homosexuals to marry as they see fit, Justice (if that word is appropriate for) Antonin Scalia asked attorney Ted Olson, who was arguing in favor of that right, "When did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868? When the 14th Amendment was adopted?"
Olson answered with a sequence of questions of his own: "When did it become unconstitutional to prohibit interracial marriages? When did it become unconstitutional to assign children to separate schools?"
The two sparred back and forth. Olson concluded: "There's no specific date in time. This is an evolutionary cycle."
Of course, that answer -- essentially the "living constitution" theory of interpreting the Constitution -- couldn't possibly have gone over very well with Scalia, who has always (and passionately) rejected it.
Olson's answer was evasive. A good answer was available to him, but he unfortunately failed to use it.
This answer would have been along these lines:
"Your assumption seems to be that the Constitution starts with the presumption that rights do not exist unless they are stated in the Constitution.
But that's a false presumption about our Constitution. This nation's Constitution starts instead with the presumption that nothing is prohibited unless laws that adhere to our Constitution prohibit it.
This Constitution starts with the presumption not of personal bondage, such as you seem to imply, but of personal freedom.
This Constitution never prohibited anyone from marrying whomever that person wants to marry, so long as that other person wants it also -- i.e., so long as it is mutually voluntary (which entails additionally a person's capacity to make such a decision -- i.e., laws barring children from marrying are not unconstitutional).
It was never unconstitutional for either heterosexuals or homosexuals to marry as they wish. Any laws to the contrary were always unconstitutional; and we respectfully submit to you that the sooner that this Court acknowledges this fact about our Constitution, and the sooner that it brings existing laws into accord with the Equal Protection Clause -- which makes it doubly so -- the better it will be for everyone."
Of course, Scalia could then have challenged Olson with a follow-up question, such as, "Then, why do we have enumerated rights in the Constitution; why did the Founders even include any Bill of Rights at all?" And Olson could well have answered him: "Because they wanted to make especially clear that those are rights that are not only allowed, but required -- that the government must never violate the people's rights in those matters, under any circumstances whatsoever. Again: only the government is restricted; the people are free and can be restrained only by laws that fall within the government's scope.
Nowhere does our Constitution assert, such as you assume, that only rights that are enumerated are protected. Instead, it restricts only what the government itself may lawfully do -- never what a citizen may do. Our Constitution doesn't do that, at all. It instead establishes a legal framework within which the scope of the government's allowable restraints upon the people (i.e., of its Constitutionally permissible laws) is clearly set forth, and in which all laws that would lie outside that restricted scope are simply prohibited to this government."
That would have been an intelligent response by Olson.
Ted Olson just isn't that bright. But neither is Antonin Scalia.
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