Individual Rights, DOMA, and (obviously) Traffic Rules

            One of Dworkin’s most intelligent critiques of Scalia, in my mind, is that regarding individual rights. He writes, “Justices whose methods seem closest to the moral reading of the Constitution have been champions, not enemies, and, as the defeat of Robert Bork’s nomination taught us, the people seem content not only with the moral reading but with its individualist implications.” (126-7) One way I thought of this as I read it, was (as you probably guessed) of individual rights as traffic laws. For example, the repeal of DOMA (to which Scalia passionately dissented) expanded the traffic laws, so to speak, of our country, so that LGBT people could use the “marriage lane” the same way anyone else could. This was clearly an expansion of individual rights, not a contraction, and it was made possible by a “moral reading of the Constitution,” particularly the Fourteenth Amendment. Scalia argues that Dworkin misconstrues his argument here, that the Fourteenth “certainly [does not] … permit discrimination on the basis of age, property, sec, “sexual orientation,” or for that matter even blue eyes and nose rings.” (148) Yet he goes on to argue that refusing to require these equal protections by law does not violate the Fourteenth Amendment. I do not disagree with him here, so long as the law also does not ensure unequal protections of the law, as it absolutely did with DOMA. This is not even the Constitution meaning “whatever it ought to mean,” which Scalia argues against, but really what he would argue it should be construed to mean: “what the text would reasonably be understood to mean.” (144)