Is Antonin Scalia Authoritarian?

Scalia can be an obnoxious clown, But is he also a shallow thinker? After listening to his interview on Fox News just now, I confess that I am unimpressed with his intellect. To be blunt about it, he seems kind of dimwitted. Yeah, I know, I’m not a Supreme Court justice, so what do I know. I’m just a criminology professor. 

I do know this: Anybody who doesn’t see the fundamental right to privacy underpinning the Bill of Rights is pretending to be blind. Why would we have a right to be secure in our papers and effects if we have no right to privacy? Why are the police required to have a search warrant to search our homes if there is no right to privacy? This is one of those rare truly authentic self-evident truths. 

It’s not just that the Fourth Amendment makes no sense if there is no right to privacy; it’s that the Fourth Amendment articulates the right to privacy and if you can’t see what is plainly before you, then you should be doing something else other than interpreting the Constitution. Here’s the text of the Fourth Amendment. “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” 

The language here is not ambiguous. Privacy is generally defined the condition or state of freedom from being disturbed or observed by other people. It’s the state of being free from public attention. Since all rights are limited only by rational secular reason and due process…. You get the point. You aren’t knucklehead like Scalia. 

Or, maybe Scalia isn’t a knucklehead but an opponent of the Fourth Amendment. Maybe he believes that our homes and effects should be open to any public scrutiny without limitation. We know he doesn’t believe in personal sovereignty, since his claim that we have no right to privacy occurred in the context of expressing a desire that the state force women to have babies. So he’s not stupid. He’s an authoritarian. Okay, maybe a stupid authoritarian. 

A younger Antonin Scalia meeting with then-President Ronald Reagan

Why don’t we have confirmation hearings in which the nominees either lay out their judicial philosophy in full or be excused from consideration? Why do we put up with this wish-washy bullshit of “I can’t answer that question because there are cases pending before the court of that nature.” 

For the record, Scalia’s nomination met with no opposition from the Senate Judicial Committee. The full Senate only briefly debated Scalia’s nomination, then confirmed him 98–0. There were 46 Democratic senators in the Senate at the time. We’re told that the reason why we have to vote Democrat is the composition of the Supreme Court. So what happened there? Why not a single vote against Scalia?

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Andrew Austin

Andrew Austin is on the faculty of Democracy and Justice Studies and Sociology at the University of Wisconsin—Green Bay. He has published numerous articles, essays, and reviews in books, encyclopedia, journals, and newspapers.

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