told a Washington audience the other day that he is a "textualist", and defined that as applying the words of the Constitution "as they were understood by the people who wrote and adopted them".
My first thought on reading that was that he must consider himself an exceptionally talented mind reader, who can not only read the minds of others but can also read the minds of people who have been dead for a couple of hundred years. What makes him think he alone knows what the men who wrote the Constitution meant when they wrote each word in that document? There is no evidence that those men always wanted the document considered in terms of the predominant 18th Century values.
In fact, those men were actually liberals who wanted to change the values of their century. One of the dominant values of that century was the divine right of rule by kings, which those men rejected in favor of a brand new value -- the idea that men could rule themselves through a representative democracy. Since those men were able to embrace new values themselves, why should we think they would not think that even those values would evolve and get better through the passage of time?
His view also assumes that all of those men agreed on the values of that time. We know that is just not true. One of the biggest arguments in writing the Constitution was the question of slavery. Some thought the ownership of slaves was their right (and a right protected by the christian religion). Others thought slavery was an indefensible abomination (and used that same religion to justify their views). Values are not as absolute as Scalia (and other right-wingers) would like to believe, and they evolve over time.
Even after slavery was abolished and the Fourteenth Amendment was passed, there was a difference of opinion in exactly what rights were guaranteed. Many believed in a doctrine of "separate but equal", and that doctrine was backed by the court for many years. But that belief was never shared by everyone in the 19th Century. And by the values recognized today, we know that separate is "inherently unequal". Both the value of equality and the court's view of it have changed over the last century.
In both the 18th and 19th centuries, the "value" known as equality never did include everyone. We have progressed, and so have our values. A majority of Americans now believe that equality should include everyone -- even if that belief was not shared by most people in the 18th or 19th centuries. The disagreement between liberals and social conservatives is this -- liberals believe we can do better than was done in the past, while social conservatives believe we must remain tied to the beliefs of the past.
Using his belief that we must cling to 18th Century beliefs and values, Scalia told that same crowd:
"The death penalty? Give me a break. It's easy. Abortion? Absolutely easy. Nobody ever thought the Constitution prevented restrictions on abortion. Homosexual sodomy? Come on. For 200 years, it was criminal in every state."
I would partially agree with Scalia. Those are easy choices to make. But they should not be made by clinging to 18th century beliefs. We do not live in the 18th Century. We live in the 21st Century, and we must make our choices using 21st Century beliefs and values -- and one of those beliefs is that equality applies to everyone. If the government grants any right to one person or group, then that same right must be granted to all people or groups. That may not be how some in the 18th Century viewed fairness, but it is certainly how we in the 21st Century view it.