Supreme Irony: Justice Scalia on Broccoli, Masturbation and the Constitution

Antonin Scalia died February 13, 2016, a day before Valentine's Day. The conservative darling defended your right to abstain from broccoli and from health insurance, but he won't stand up for your right to pleasure yourself.

If you followed the oral arguments before the Supreme Court during its impactful hearings on the 2010 Affordable Care Act, you’re aware that a particular green cruciferous vegetable factored heavily into Justice Antonin Scalia’s decision. During some of the exchanges, he questioned one of the attorneys about the justifiability of the law’s mandate that Americans buy health insurance.

What you may not know is that while Scalia apparently finds a law regulating the health insurance market to be horribly excessive, he thinks laws regulating fornication and masturbation represent a perfectly reasonable exercise of state power.

That’s right: Justice Scalia will defend your right to abstain from broccoli and from health insurance, but he won't stand up for your right to pleasure yourself.

Hold the Broccoli

Let’s begin with Scalia’s line of questioning in March. Here is what he said to Attorney General Donald Verrilli on the second day of oral argument:


Could you define the market — everybody has to buy food sooner or later, so you define the market as food, therefore, everybody is in the market; therefore, you can make people buy broccoli.

Scalia didn’t come up with the broccoli analogy on his own. He grabbed it from conservative talk radio hosts and right-wing bloggers anxious to grease a slippery slope from the individual mandate down to forced purchases of leafy vegetables and gym memberships. If the government can compel you to buy health insurance to make the health insurance market more fair and workable for all, it can pull you kicking and screaming to the juice bar, or the gym, or a yoga studio. Can’t it?

Verrilli’s response was rambling and never quite got to the point, but Paul Krugman offers a clearer explanation:

When people choose not to buy broccoli, they don't make broccoli unavailable to those who want it. But when people don't buy health insurance until they get sick — which is what happens in the absence of a mandate — the resulting worsening of the risk pool makes insurance more expensive, and often unaffordable, for those who remain. As a result, unregulated health insurance basically doesn't work, and never has.

When Scalia pressed the broccoli argument he spoke up for every American who wants to make his own decisions about how to live his life. He winked to carnivores and possibly to the elder President Bush, who hates broccoli more than anything. Scalia’s point was clear: the government exceeds constitutional limits when it interferes with individual, personal decisions.

Hold the Vibrators

Yet in his dissent in Lawrence v. Texas, a sexual freedom case from 2003, Scalia warned, presumably with a straight face, that overturning anti-sodomy laws spelled the demise of laws banning a number of sexual practices:

State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of...validation of laws based on moral choices. Every single one of these laws is called into question by today’s decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding.

You might be asking yourself at this point: there were laws against masturbation? And Scalia opposed the decision in Lawrence because it might undermine the logic behind these laws?

Yes and yes. This slippery slope reasoning was a significant part of Scalia’s view that anti-sodomy laws should be upheld. And while there are no laws prohibiting masturbation itself — a ban that would be ridiculously unenforceable, to say the least — there have been regulations aimed to curb onanism on the books in many states. Until 2008, Texas had a law banning the sale of sex toys. So did Alabama, Virginia and Mississippi. Even liberal Massachusetts (along with Georgia) prohibits something called “masturbation for hire,” presumably to deter masseuses from providing clients with anything more than a good clean massage. Many states legislate against variety of consensual sexual practices or “lewd and lascivious” behavior.

As it turns out, Scalia’s doomsday warning has come to pass. Texans and their southern neighbors are now free to buy vibrators, and we have the precedent in Lawrence v. Texas to blame for the travesty. Here is how the 5th U.S. Circuit Court of Appeals justified overturning the sex toy ban:

Just as in Lawrence, the state here wants to use its laws to enforce a public moral code by restricting private intimate conduct. The case is not about public sex. It is not about controlling commerce in sex. It is about controlling what people do in the privacy of their own homes because the state is morally opposed to a certain type of consensual private intimate conduct. This is an insufficient justification after Lawrence.

So far, incest, beastiality and polygamy are still no-nos.

Scalia’s Opportunistic Originalism

Why is Scalia opposed to a law regulating the insurance industry while fully supportive of the constitutionality of laws regulating private sexual conduct? He would tell you that the cases involve wholly different constitutional issues: Obamacare is about the limits of congressional power under the Commerce Clause of the Constitution, while laws concerning sexual morality are the legitimate province of the states. Absent a right to privacy or sexual intimacy — which Scalia calls a “total absurdity” — there is nothing in the Constitution to prevent states from discriminating on the basis of sexual orientation, and there is nothing to prevent them from banning sex toys or masturbation outright.

In his forthcoming book, previewed by Adam Liptak in the New York Times last week, Scalia claims to show that his judicial rulings have sometimes departed from his personal views. With allegiance to the original meaning of the constitutional text, Scalia presents himself as a neutral arbiter of every case that comes before him: the text alone decides.

But this originalism is not quite orthodox. Scalia admits there are times he deviates from the original meaning of the Constitution, and so he calls his judicial philosophy “faint-hearted originalism.” First, the principle of stare decisis — the Court’s tradition of respecting its prior decisions, most of the time — limits the extent to which a justice should overturn precedents based on an originalist understanding of the text. And second, if the original meaning of the text is too shocking to bear, it can be suppressed. Here is Scalia in a 1989 law review article:

What if some state should enact a new law providing public lashing, or branding of the right hand, as punishment for certain criminal offenses? Even if it could be demonstrated unequivocally that these were not cruel and unusual measures in 1791 [when the Eighth Amendment prohibition on “cruel and unusual punishment” was adopted], and even though no prior Supreme Court decision  has specifically disapproved them, I doubt whether any federal judge — even among many who consider themselves originalists —  would sustain them against an eighth amendment challenge.

This seemingly minor admission bespeaks a significant gap in Scalia’s jurisprudence and helps us make sense of the irony of his positions: substantive moral judgements are Scalia’s true guide. The Justice has no beef with laws curbing sexual conduct, but he's dead-set against regulations of the health insurance market. The Constitution needs to step aside or be re-interpreted when its implications are untenable. 

Follow Steven Mazie on Twitter: @stevenmazie


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Homo sapiens have been on earth for 200,000 years — give or take a few ten-thousand-year stretches. Much of that time is shrouded in the fog of prehistory. What we do know has been pieced together by deciphering the fossil record through the principles of evolutionary theory. Yet new discoveries contain the potential to refashion that knowledge and lead scientists to new, previously unconsidered conclusions.

A set of 8-million-year-old teeth may have done just that. Researchers recently inspected the upper and lower jaw of an ancient European ape. Their conclusions suggest that humanity's forebearers may have arisen in Europe before migrating to Africa, potentially upending a scientific consensus that has stood since Darwin's day.

Rethinking humanity's origin story

The frontispiece of Thomas Huxley's Evidence as to Man's Place in Nature (1863) sketched by natural history artist Benjamin Waterhouse Hawkins. (Photo: Wikimedia Commons)

As reported in New Scientist, the 8- to 9-million-year-old hominin jaw bones were found at Nikiti, northern Greece, in the '90s. Scientists originally pegged the chompers as belonging to a member of Ouranopithecus, an genus of extinct Eurasian ape.

David Begun, an anthropologist at the University of Toronto, and his team recently reexamined the jaw bones. They argue that the original identification was incorrect. Based on the fossil's hominin-like canines and premolar roots, they identify that the ape belongs to a previously unknown proto-hominin.

The researchers hypothesize that these proto-hominins were the evolutionary ancestors of another European great ape Graecopithecus, which the same team tentatively identified as an early hominin in 2017. Graecopithecus lived in south-east Europe 7.2 million years ago. If the premise is correct, these hominins would have migrated to Africa 7 million years ago, after undergoing much of their evolutionary development in Europe.

Begun points out that south-east Europe was once occupied by the ancestors of animals like the giraffe and rhino, too. "It's widely agreed that this was the found fauna of most of what we see in Africa today," he told New Scientists. "If the antelopes and giraffes could get into Africa 7 million years ago, why not the apes?"

He recently outlined this idea at a conference of the American Association of Physical Anthropologists.

It's worth noting that Begun has made similar hypotheses before. Writing for the Journal of Human Evolution in 2002, Begun and Elmar Heizmann of the Natural history Museum of Stuttgart discussed a great ape fossil found in Germany that they argued could be the ancestor (broadly speaking) of all living great apes and humans.

"Found in Germany 20 years ago, this specimen is about 16.5 million years old, some 1.5 million years older than similar species from East Africa," Begun said in a statement then. "It suggests that the great ape and human lineage first appeared in Eurasia and not Africa."

Migrating out of Africa

In the Descent of Man, Charles Darwin proposed that hominins descended out of Africa. Considering the relatively few fossils available at the time, it is a testament to Darwin's astuteness that his hypothesis remains the leading theory.

Since Darwin's time, we have unearthed many more fossils and discovered new evidence in genetics. As such, our African-origin story has undergone many updates and revisions since 1871. Today, it has splintered into two theories: the "out of Africa" theory and the "multi-regional" theory.

The out of Africa theory suggests that the cradle of all humanity was Africa. Homo sapiens evolved exclusively and recently on that continent. At some point in prehistory, our ancestors migrated from Africa to Eurasia and replaced other subspecies of the genus Homo, such as Neanderthals. This is the dominant theory among scientists, and current evidence seems to support it best — though, say that in some circles and be prepared for a late-night debate that goes well past last call.

The multi-regional theory suggests that humans evolved in parallel across various regions. According to this model, the hominins Homo erectus left Africa to settle across Eurasia and (maybe) Australia. These disparate populations eventually evolved into modern humans thanks to a helping dollop of gene flow.

Of course, there are the broad strokes of very nuanced models, and we're leaving a lot of discussion out. There is, for example, a debate as to whether African Homo erectus fossils should be considered alongside Asian ones or should be labeled as a different subspecies, Homo ergaster.

Proponents of the out-of-Africa model aren't sure whether non-African humans descended from a single migration out of Africa or at least two major waves of migration followed by a lot of interbreeding.

Did we head east or south of Eden?

Not all anthropologists agree with Begun and his team's conclusions. As noted by New Scientist, it is possible that the Nikiti ape is not related to hominins at all. It may have evolved similar features independently, developing teeth to eat similar foods or chew in a similar manner as early hominins.

Ultimately, Nikiti ape alone doesn't offer enough evidence to upend the out of Africa model, which is supported by a more robust fossil record and DNA evidence. But additional evidence may be uncovered to lend further credence to Begun's hypothesis or lead us to yet unconsidered ideas about humanity's evolution.