- Scalia shot down the federal Violence Against Women act and the Gun Free Schools acts. These were gross violations of federalism and his decision was perfectly in keeping with his philosophy.
- Cohen states that "In [Scalia's] view, the 14th Amendment prohibits Michigan from using affirmative action in college admissions but lets Texas make gay sex a crime". Uh, yeah - the 14th amendment was written to prevent unequal treatment of people based on race, which is precisely what Michigan was doing. Does Cohen seriously believe that the ratifiers of the 14th amendment were intent on legalizing sodomy throughout the land? Jeez, that's weak.
- Cohen goes on: "[Scalia] is dismissive when inmates invoke the Eighth Amendment ban on cruel and unusual punishment to challenge prison conditions...but he is supportive when wealthy people try to expand the "takings clause" to block the government from regulating their property." Expand the takings clause? The idea that the federal government could prevent someone from building a home on their property in order to preserve swampland without compensating the owner would really have thrown the founders for a loop. When does Cohen think the Bill of Rights was written? 1978? Is he unaware that Penn Central v City of New York was a landmark case throwing out 200 years of property rights? Does Cohen really think that the founders intended the 8th amendment as a tool for federal courts to micromanage state penal systems?
- Cohen brings up the obligatory Bush v Gore trampling-on-states-rights argument. He quotes Scalia in a New Yorker profile that is not on-line, but based on his signing Rehnquist's concurrence, Scalia objected to the over-reaching of the Florida Supreme Court in overturning the legislature's constitutional role in appointing electors, so again this is quite consistent with his views.
- The only place Cohen might have a point is on Scalia's broad interpretation of the 11th amendment immunity of states to lawsuits. But this interpretation goes back at least to 1890 and an inconsistent take on the 11th amendment is hardly a worthy basis for a diatribe.
I'm not arguing that Cohen and others cannot fairly disagree with Scalia's philosophy and decisions, but that doesn't make them inconsistent. Scalia has consistently argued for a simple, straightforward and faithful reading of the constitution, as Adam Cohen unintentionally demonstrates.