What Justice Scalia Got Wrong on DOMA: Democracy is Not Enough

In his dissent on the latest Supreme ruling on the Defense of Marriage Act (DOMA), Justice Scalia said that an important national question like homosexual marriage should be left to the democratic process. He said something similar in a 2012 interview with Piers Morgan on the subject of abortion.

Scalia stated, “Regardless of what my views as a Catholic are, the Constitution says nothing about [abortion]. . . . [T]he Constitution, in fact, says nothing at all about the subject” of abortion. True enough.

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.”

I would add to this that the Constitution doesn’t say anything about stealing, murder, or rape. There’s no mention of sex, whether male or female. The words “man,” “men,” “woman,” and “women” are not found in the Constitution. The Constitution assumes certain things to be fundamentally true and fixed.

I do not agree that issues like abortion, murder, rape, or homosexual marriage should be left to “democratic choice.” Pure, unbound democracy can and has led to a mobocracy. What if the majority decides to define what it means to be worthy of life (e.g., abortion and genocide) or establish the limits of property rights? Consider the first four planks in the Communist Manifesto:

  1. Abolition of property in land and application of all rents of land to public purposes.
  2. A heavy progressive or graduated income tax.
  3. Abolition of all right of inheritance.
  1. Confiscation of the property of all emigrants and rebels.

Who gets to define what a “rebel” is? There are liberals, for example, who contend that tea Party advocates are “terrorists.” A new Rasmussen poll of likely voters reports that “twenty-six percent of people who approve of President Barack Obama’s job performance view the tea party as the United States’ top terror threat, compared to 29 percent who view radical Islam as the greatest concern.”

william blackstone
William Blackstone

What if the majority of wolves decide to eat the sheep?

The Constitution was written against the moral background of a religious worldview that was rooted in the Bible. Even the use of “natural law” had a fundamental connection to special revelation as William Blackstone (1723–1780) made clear in his Commentaries on the Laws of England. Vestiges of Blackstone’s Natural Law view are found in the Declaration of Independence.

In the Empire Strikes Back, “Episode V,” in the six-part Star Wars saga, viewers are introduced to the Cloud City of Bespin and its ruler, Lando Calrissian. Cloud City was a man-made satellite community that hovered in the midst of valuable gas reserves. The image of a city floating in the midst of clouds is similar to what has happened to our Constitution. Without acknowledging an outside authority — a higher law — as the source of right and wrong, the document hangs among the clouds of shifting ethical winds and is now defined by justices who no longer believe in a fixed moral anchor for law.

There is nothing in the Constitution that defines ethics, the parameters of marriage relationships, or what constitutes a family. Today, ethical absolutes have no greater authority than “We, the people,” a point that was argued by Patrick Henry in his opposition to the Constitution and its democracy-only Preamble. The rat he smelled more than two centuries ago is giving off an even greater stench today.

Rush Limbaugh said, “Whoever has the largest number on one side, the loudest voices, and the most insulting voices wins.” We saw the mob in action in Austin, Texas, when a shouting mob would not allow a vote on abortion to take place. This is the liberal version of “we the people” and “democracy in action.”

Our Constitution needs a solid moral foundation upon which to rest. It has hovered far too long among the clouds of a gaseous moral relativism that has been co-opted by highly organized and government funded special interest groups and a complicit media.

Democracy isn’t enough.