Haven’t been blogging in a while because all anyone can talk about is the fiscal cliff and its just so stupid I can’t bring myself to do it. Luckily for you, I’ve managed to find a couple of non-cliff topics. Justice Scalia was promoting his book* in Princeton yesterday and was asked by a gay student why he sees equivalence between banning sodomy and banning murder. Scalia responds:
“I don’t think it’s necessary, but I think it’s effective,” Scalia said, adding that legislative bodies can ban what they believe to be immoral.
According to Article 1, section 8, congress can make laws which it considers “Neccesary and Proper” to carrying out its powers. But according to Scalia, this law is not neccesary! Scalia may also be interested to learn that, as a Supreme Court Justice, he is not a member of a legislative body! His job is not to ban what he believes to be immoral. I agree that a legislative body can ban what it considers to be immoral, but the job of the Supreme Court is not to point that out, its to make sure such bans are constitutional. The necessary and proper clause can be used here (a ban on murder is not based on moral grounds for example, but is necessary and proper to protect the public at large) but Scalia has admitted directly that a sodomy ban would fail this test. Scalia should articulate why he finds such a ban acceptable, rather than just making absurd arguments about bestiality and murder and then saying its a moral thing.
*Something about a Justice running around promoting a book seems a bit off to me. I get that it happens, it just seems odd. Maybe they should retire earlier, then write their books.
520 Chestnut 
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