So, the Democratic vice presidential nominee will be Joseph Biden of Delaware, a man whose satisfaction with the sound of his own voice is limitless and legendary. To stand out from 99 other United States Senators in that regard is, in its way, heroic.
It’s a bad thing in life, and especially in politics, to be known as the guy who always has to prove that he’s the smartest one in the room. Al Gore and Newt Gingrich each had this problem. It’s a worse thing, however, to be that guy when you’re never the smartest one in the room.
In August 1993 The New Republic helpfully printed, on an entire page, the transcription of a single question that Sen. Biden posed to Ruth Bader Ginsburg during her Supreme Court confirmation hearings before the Senate Judiciary Committee. It’s five times as long as the Gettysburg Address. Read it, if you are stout-hearted, and judge for yourself the quality of Sen. Biden’s mind and his contribution to our experiment in self-government.
SENATOR BIDEN: . . . [If] I had to be on an island with a man for any extended period of time, I might pick Judge [Antonin] Scalia. And the reason I would, sincerely, is I think he’s brilliant, I think he’s dead wrong most of the time, as he thinks I am, and it would be, as another nominee who came before us once said when asked why he wanted to be on the court, he said it would be an intellectual feast.
I now – a slight digression – I had a conversation with Justice Scalia after he had been nominated to tell him that I was about to say in an interview the vote I most regretted casting out of all the ones I ever cast was voting for him because he was so effective. He said, "What are you doing now?" And I thought he was asking me about something – I said, "I’m teaching a course in constitutional law at Widener University." He said, "Oh, my God. I better come and tell them the truth." So I’m sure he would have an opportunity to educate me if we were on an island together.
But having said that, Justice Scalia, on a very serious note, has offered one method – one method of – a methodology to determine whether or not a right of privacy, a personal right that is not enumerated, not mentioned in the Constitution, warrants constitutional protection. And he has written that the only interests protected by the liberty clause of the Fourteenth Amendment are those interests which are defined in the most narrow and specific terms where historical safeguards from government interference [have] existed.
Now, as you know better than I do-again at the expense of offending my brethren in the press, I’m going to be very fundamental about this, to use a phrase from another – in another context – when in the past we have determined whether or not fundamental rights of privacy exist, one of the things they go back and, courts have done, is go back and look at history. They say what have we done in the past as a people? What has our country done? What has our English jurisprudential system recognized, not only here in the states but in England in the common law? And they looked back at that as one of the guideposts – not the only one, not necessarily determinative, but that’s what they do – they have done.
And I think, by inference, Justice Scalia acknowledges that is an appropriate method, at least a starting point, to determine whether or not an unenumerated right should be recognized as protected by the Constitution. And so Justice Scalia says that when you go back to determining whether or not there is a – there’s an interest protected by the liberty clause of the Fourteenth Amendment – you go back and look at those interests defined in their most narrow and specific terms when you look back at history.
So the question for Justice Scalia in deciding whether the Constitution protects a particular liberty, including a particular privacy interest, is whether years and years ago the government recognized that precise, specific interest. Now, that approach of Justice Scalia, which was outlined by him in the Michael H. case, that approach is very different from another, and I would characterize as the traditional approach for determining whether or not these unenumerated rights that we have recognized exist, an approach which – the traditional approach, in my view, looks to whether the Constitution expresses a commitment to a more general interest and then asks how that commitment should be applied in our time [to] a specific situation.
The difference between these two approaches can make all the difference in the world where a justice comes out on the finding of whether such a right exists or doesn’t.
For example, under Justice Scalia’s approach, the right to marry someone of a different race is not protected by the Constitution – at least arguably, based on things he has said, because the right to marry is nowhere specifically mentioned in the Constitution. And when you go back to look at whether or not – which is one of the methods used by all justices to determine whether or not there is an unenumerated right that should be protected – when you go back in history and look, there’s no place you can say that under our English jurisprudential system, our courts or the English courts, have traditionally recognized the specific right of blacks and whites to marry. And since you can’t find that back there, then the right doesn’t exist.
Whereas, in footnote 6, for example, as you well know, although Justices Kennedy and Souter – I mean Kennedy and O’Connor – agreed with the overall finding on that case, which I won’t bother you with the facts, which you know well and are not particularly relevant to my point – they said we dissent from the methodology used by Justice Scalia in arriving at a decision which is the right decision – my words – but for the wrong reason. And they said you go back and you look at the general proposition of whether or not the general interest seeking protection under the Constitution is in fact one we’ve historically protected. So they say when you go back, you should look at have we historically protected the right and recognized the right of individuals to marry who they want to marry? So you go back and, depending on what question you ask, you get a different answer.
And if you go back and say okay, we’ll recognize – and I’m oversimplifying – if we recognize we’re going to recognize – determine whether or not anti-miscegenation laws are constitutional, and the basis on which they’re being challenged is I have a privacy right to marry who I want to marry, so let’s see if that right is protected by the Constitution.
Scalia’s approach, you go back, you look at all the history and you say, hey, there’s no place where blacks and whites were protected – because that’s the issue – are blacks and whites – can they marry? But if you use the O’Connor approach you go back and say have we recognized the right to marry? And they say yeah, we’ve done that; ergo we can say, using that methodology of looking at the general proposition, there may be a rationale to acknowledge--a principled rationale to acknowledge or recognize the right to marry a black man or a white woman or a white woman – or I mean a black white man or black woman. That may fall within the domain of my right of privacy guaranteed by the Constitution.
[At this point, Senator Biden was asked a question by Senator Orrin Hatch of Utah. After a ninety-nine word response, the Delaware senator picked up where he left off.]
Now, in contrast, as I said, under the more traditional approach of recognizing unenumerated rights, the courts asked not whether the legal system historically had protected interracial marriages but whether the legal system historically had protected the institution of marriage generally.
Because it had, because our legal system long had understood the importance of family integrity and independence, the court held in Loving v. Virginia that the particular right to marry someone of another race is also protected.
Now, in thinking about how the Constitution protects unenumerated rights, including rights of privacy, will you use – I’m not asking you where you’re going to come out on any issue, but will you use the methodology that looks to – going back to a specific right being sought guaranteed, or will you use the more traditional method of more broadly looking at the right that is attempting – seeking constitutional protection before the court? What methodology will you use? What role will history and tradition play for you in determining whether or not a right exists that is not enumerated?
JUDGE GINSBURG: Mr. Chairman, if I understand your question correctly. . . you are asking whether I would have subscribed to both parts of Loving, that is, both the equal protection and the due process -
SENATOR BIDEN: No. Let me be very clear . . .