>> Well, whose desires are being constrained, what kind, by whom, for what
>> end? Scalia's examples are abortion & sodomy.
>
> Did Scalia use those as examples in this speech or is that the blogger's
> addition? I didn't see a link to the speech.
Ah, now I do. Well, that isn't exactly what he's saying. He doesn't give those things as examples of things that are forbidden by the constitution. Rather it's kind of the opposite. He gives these as examples of things (he says) aren't rights, meaning the constitution *doesn't* forbid us from forbidding them. You and the Awl guy are ironically on the side that the constitution should forbid us more, and constrain our desires (to pass laws outlawing such things) more.
Scalia's line that "the constitution is there to constrain us" is a separate argument. It's a second level defense of his theory of "originalism." What he's saying in those two sentence, that originalism is the only consistent doctrine because only it is consistent with this essence of a constitution. It's as hell glib, but ideologically very snappy.
As far as our desires are concerned, originalism is the worst doctrine ever invented, and Scalia invented it, so I hate him for it. But I wish someone on the left would invent an equal and opposite interpretive doctrine that was as politically snappy and legally effective as his. Something like teleogism: the idea rights always fall short of what they ought to be, and the true American project is to make them come closer to that perfection. That they were stated in "majestic generalities" in the first place precisely because they were meant to be ideals, and our job is to realize them as perfectly as we can.
Which is more or less what we think, and it's true, and it's smarter than his idea, but we've never packaged it right. Our guys are dull. (To start with, we could use a snappy name. Teleogism is the right idea, but it's unsnappy and unAmerican as you can get.)
Michael