Justice Scalia: 'The Constitution Says Nothing About Abortion'
If you have ever wondered how to respond to hyperbole, ridicule, and feigned alarm when you say that the Constitution is as relevant today as it was over two hundred years ago, listen to the master, Supreme Court Justice Antonin Scalia, and learn.
In an interview with CNN’s Piers Morgan, Justice Scalia countered, with good humor, Morgan’s pretend shock regarding how the nation could possibly survive today had Roe v. Wade not been decided as it was.
First, Morgan asked the high court justice why he was “so violently opposed” to Roe v. Wade.
“I wouldn’t say violently,” Scalia said calmly. “I’m a peaceful man. You mean adamantly opposed.”
Attempting to charge Scalia with inappropriately allowing his conservative ideology and Catholic faith to influence his interpretation of the Constitution, Morgan asserted, “Clearly, as a conservative Catholic, you’re going to be fundamentally against abortion. How do you, as a conservative Catholic, how do you not bring your personal sense of what is right or wrong to that kind of decision?”
Justice Scalia countered, “Regardless of what my views as a Catholic are, the Constitution says nothing about it…the Constitution, in fact, says nothing at all about the subject.”
Scalia continued, “Just as the pro-choice people say the Constitution prohibits the banning of abortion, so also the pro-life people say…that the Constitution requires the banning of abortion, because you’re depriving someone of life without due process of law. I reject that argument just as I reject the other one. It is left to democratic choice.”
Scalia added that the theory of “substantive due process,” upon which the final Roe v. Wade decision was based, is “simply a lie.”
In traditional liberal fashion, Morgan linked the abortion issue to women’s rights, charging that, when authoring the Constitution, the Founding Fathers “gave women no rights.”
“Oh, come on, no rights?” Scalia argued. He noted that the new nation distinguished itself on the world stage by granting women equal rights to due process under law.
When Morgan countered that the notion of women having a right to an abortion would have never entered the minds of the Founding Fathers, Scalia replied, “They didn’t have wives and daughters that they cared about?”
Morgan, who clearly views the Constitution as passé, and women of the colonial period as ignorant, asserted that only “in the last century” did women become concerned with their rights and taking charge of their lives. “Everybody believed that was the right thing to do, didn’t they? I mean, why would you seem to be against that?”
Scalia said, “My view is that regardless of whether you think prohibiting abortion is good or whether you think prohibiting abortion is bad--regardless of how you come out on that--my only point is the Constitution does not say anything about it. It leaves it up to democratic choice. Some states prohibited it, and some states didn’t. What Roe v. Wade said was that no state can prohibit it.”
What is striking to me about Justice Scalia is that he clearly, and unapologetically, views the Constitution as a living document that is completely relevant today, in its original form. Scalia offers to the nation, at a time when many of our leaders would cast the Constitution aside or bastardize it to suit their personal political needs, a solid foundation and philosophy on which to stand as we move forward.
Let’s hope we will have more like Justice Scalia in the future.
Read Justice Scalia’s new book, Reading Law: The Interpretation of Legal Texts, co-authored with Bryan Garner.