How Liberal Fools Attack Justice Scalia

Justice Antonin Scalia
Justice Antonin Scalia

A left-leaning Salon opinion writer named Nicholas Buccola obviously doesn’t know the importance of definition and of objectively assessing, critiquing the writings of historical and public figures (like abolitionist Frederick Douglass and Justice Scalia) without resorting to strawman fallacy and context-dropping.

Buccola’s op-ed clearly demonstrates how one’s failure to define terms, especially technical terms, can effectively confuse or fool the gullible and dishonestly smear the subject of one’s criticism.

For example, he used the terms “democracy”, “majoritarianism” and “majoritarian democracy” without properly, objectively defining them.

Buccola wrote: “In his dissenting opinion in the case, Justice Antonin Scalia accused the majority of nothing less than an assault on democracy.”

How did Justice Scalia accuse the majority of what the Salon writer calls assault on democracy?

Well, it’s not really clear except that he claimed Scalia’s dissent is based on his alleged philosophy of “majoritarianism”. The problem is, Buccola failed to define his term and to explain what makes justice’s court decisions “majoritarian”.

He only gave the following explanation: “The “beauty of what our Framers gave us,” he wrote in Windsor, is “a system of government that permits us to rule ourselves.” The Court could have chosen the path of “honor,” Scalia argued, “by promising all sides of [the same-sex marriage] debate that it was theirs to settle and that we would respect the resolution. We might have let the People decide.”

Then he interpreted Scalia’s statement in the following manner: “According to Scalia, the Court’s cardinal sin in Windsor was to step in and interfere with the will of the majority.”

Hilarious! That’s not what Scalia is trying to say.

Let me try to dissect Buccola’s out-of-context reading of Scalia’s dissent.


First, the philosophy at the core of the conservative justice’s dissent is not “majoritarianism”, but individualism, which means that individuals must be left alone to make their own decisions and to govern themselves. This is in line with the political philosophy behind the American Constitution and the Bill of Rights.

According to the Bill of Rights, every individual is entitled to life, liberty, property and pursuit of happiness. This is why Scalia said the founding fathers created a system that permits its people to rule themselves. By “rule themselves” he didn’t mean anarchy or statelessness, but the individual right to make choices, to marry whoever one wishes, to trade, to enter into contract, to own and sell property, etc. What the American Constitution guarantees is individual choice and empowerment. The founding fathers and early Americans didn’t declare war on King George III of England to establish another form of collectivist system. They fought and topple the oppressive English monarchy because, according to Thomas Jefferson, they believed in the self-evident truths that “all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

Mr. Buccola seriously needs to read the Declaration of Independence.

Buccola also wrote: “If Scalia is right to say that majoritarianism is the heart and soul of the American Constitution, then it is easy to accept his claim that the Court committed a great crime against democracy in Windsor.”

I believe this is worse than context-dropping or strawman fallacy. As already suggested above, Scalia never argued that majoritarianism is at the heart of the American Charter. Scalia is merely applying the what the Constitution actually says above “gay marriage” or other related issues. What he is trying to say is this: the government has no business telling people what choices to make and how to live or govern their lives.

From his dissenting opinion in U.S. v. Windsor, Scalia said: “This case is about power in several respects. It is about the power of our people to govern themselves, and the power of this Court to pronounce the law. Today’s opinion aggrandizes the latter, with the predictable consequence of diminishing the former.”

If it’s not yet clear to Mr. Buccola, what J. Scalia is trying to tell his colleagues and America is: You have the power to live your life according to your choices.

Scalia further said: “To be sure (as the majority points out), the legislation is called the Defense of Marriage Act. But to defend traditional marriage is not to condemn, demean, or humiliate those who would prefer other arrangements, any more than to defend the Constitution of the United States is to condemn, demean, or humiliate other constitutions. To hurl such accusations so casually demeans this institution. In the majority’s judgment, any resistance to its holding is beyond the pale of reasoned disagreement. To question its high-handed invalidation of a presumptively valid statute is to act (the majority is sure) with the purpose to “disparage,” “injure,” “degrade,” “demean,” and “humiliate” our fellow human beings, our fellow citizens, who are homosexual.”

That very clear statement simply shows that the majority should have no power at all to deny other people– or the minority– of their rights! If this is what Mr. Buccola calls “majoritarian”, then he has all the right to make the most of it.

Buccola also said: “According to Douglass, majoritarian democracy lacks a sound “philosophical theory” at its foundation. It is not “genuine” in the sense that it lacks any justification for itself beyond power. The fundamental flaw in the majoritarian conception of democracy, Douglass wrote, was that it violated “the only intelligible principle” on which democracy can be based: the equal dignity of each human being. “The right of each man to life, liberty and the pursuit of happiness,” he concluded, “is the basis for all social and political right.””

The question is, Did Douglass ever use the term “majoritarian democracy”? The standard definition of democracy is “majority rule”. In politics, whatever the majority decides or elects, however immoral or evil it may be, becomes the binding rule or the law. Historically, it was this majority rule mentality that brought about the passage of laws on slavery and slave trade in the Southern states of America. And if Mr. Buccola read American history, he’d be able to understand that Douglass ran away from Maryland where he was born and considered a slave by the majority in order to lead the abolitionist movement to finally live as a free man.

Douglass defied the majority in Maryland; he fought for his right to life, liberty and the pursuit of happiness, which “is the basis for all social and political right”.

Now, is Buccola trying to say he has the right and power to deprive gays and lesbians their right to marry whoever they want? Is he trying to say that the majority has the power to deprive the minority of their rights? Well, if that’s the premise of his op-ed, then he’s simply contradicting his arguments and exposing himself as totally clueless.

One of the most important functions of the Supreme Court is to protect the minority against the tyranny of majority.

Justice Scalia is absolutely right in saying this: “Some will rejoice in today’s decision, and some will despair at it; that is the nature of a controversy that matters so much to so many. But the Court has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat. We owed both of them better.”

Indeed, it is Mr. Buccola who miserably failed to grasp the real concept of democracy as well as the underlying philosophy at the core of the U.S. Constitution.


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