Justice Antonin Scalia says that interpreting the Constitution is easy. Being a “textualist” he interprets the words in the Constitution as they were understood by the people who wrote them. It’s the same with any piece of literature. Supreme Court Justice and constitutional scholar Joseph Story (1779–1845) wrote:
“The first and fundamental rule in the interpretation of all instruments [documents] is to construe them according to the sense of the terms and the intention of the parties.”
Thomas Jefferson, writing to William Johnson in 1823, concluded:
“On every question of construction, carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed.”
Liberals cannot bring themselves to follow the logic of Story and Jefferson. They need to remake the Constitution in their own image. But consider these comments that Justice Scalia made at the American Enterprise Institute:
“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.”
To argue that capital punishment by hanging or a firing squad is “cruel and unusual” punishment is ridiculous given the fact that in the 18th century both methods of execution were practiced.
Legal prohibitions against abortion were common in the United States as Marvin Olasky, author of Abortion Rites, points out. In addition, there was a general aversion to doctors who performed abortions:
“During the half-century from 1860 to 1910 in which America’s rate of abortion declined sharply, The New York Times regularly reported on prominent physicians who did abortions. A story in 1884, ‘Two Physicians in Trouble,’ noted that two of the ‘best known physicians in Providence, R.I.,’ were on trial for abortion. A typical story in 1886, ‘DOCTOR INDICTED,’ detailed abortion charges against a highly regarded New Haven physician, Dr. Gallagher. A similar story about a well-connected doctor noted the abortion arrest of Philadelphia physician David Otway.”
Homosexuality has an even more prohibitory legal history in the United States. In Bowers vs. Hardwick (1986) the Supreme Court concluded:
“Sodomy was a criminal offense at common law and was forbidden by the laws of the original 13 States when they ratified the Bill of Rights. In 1868, when the Fourteenth Amendment was ratified, all but 5 of the 37 States in the Union had criminal sodomy laws. In fact, until 1961, all 50 States outlawed sodomy, and today , 25 States and the District of Columbia continue to provide criminal penalties for sodomy performed in private and between consenting adults.”1
At a General Court Marshall, on March 10, 1778, a Lieutenant Enslin was “tried for attempting to commit sodomy with John Monhort.” He was also tried for “Perjury in swearing to false Accounts.” Enslin was “found guilty of the charges exhibited against him, being breaches of 5th. Article 18th. Section of the Articles of War.” He was dismissed from the service “with infamy. His Excellency the Commander in Chief [George Washington] approve[d] the sentence and with Abhorrence and Detestation of such infamous Crimes order[ed] Lieutt. Enslin to be drummed out of the Camp . . . by all the Drummers and Fifers in the Army never to return.”2
History and the Constitution are on the side of Justice Scalia.