Saturday, April 16, 2005
Justice Scalia shares views in W&L talk
Embrace the Constitution as it was written, he said. Don't expect it to conform to today's changing society.
Speaking at Washington and Lee University, Justice Antonin Scalia cited as an example his vote upholding the right to burn an American flag as a form of free speech. To end up in the majority of that controversial 5-4 decision, Scalia applied his so-called "originalist" interpretation of the Constitution, which adheres strictly to what the framers of the document had in mind more than 200 years ago.
"You look to the text and you say: What did that text mean to society when it was adopted?" Scalia said. "Once I find out what that is, you've got me. I'm handcuffed. I can't do the mean and nasty conservative things I want to do. I can't stop scruffy, sandal-wearing people from burning the flag."
While defending his originalist philosophy - which Scalia said is a minority view on the court - he criticized those who believe in a living Constitution, or one that can be interpreted differently over the years to conform to changing views of society. Such a view guided the high court's decision earlier this year to bar the death penalty for juveniles to meet the "evolving standards of decency."
In matters involving the death penalty, assisted suicide, gay rights and other hot-button issues of the day, Scalia said, jurists who embrace a living Constitution are inserting their own personal views into what should be a democratic process.
"You want the death penalty? Persuade your fellow citizens it's a good idea and enact it," he said. "You think the death penalty is barbaric? Persuade your fellow citizens that it's barbaric and repeal it."
Congress followed such a practice in the 1920s when it passed the 19th Amendment that allowed women to vote, Scalia said. Today, he said, the Supreme Court would have just read that right into the Constitution. "We know that if that issue had come up today, we would not have had a constitutional amendment," he said.
Frequently drawing laughs from a crowd of about 500 that packed Lee Chapel, a sarcastic Scalia at one point mimicked the schoolchildren he has heard recite how the Constitution is a living document.
"I am trying to persuade you that you should love a dead Constitution," he said. "I can package it better than that, I suppose: an enduring Constitution."
Scalia, a President Reagan appointee who has been on the Supreme Court since 1986, said he and Clarence Thomas are the only two originalists left on the court.
"Originalism is very much a minority philosophy today," Scalia said. "I've often said you can fire a cannon loaded with grapeshot into the faculty lounge of virtually any major law school and not strike an originalist."
In explaining why his once commonly held view is now the minority, Scalia cited the "seductive" nature of a living Constitution that can be read to offer protection for whatever cause a person might embrace. "And if you think it's seductive to John Q. Public, think how seductive it is to a judge," he said.
Citing several examples of how he has sided with the court's liberal members, Scalia insisted that his way of interpreting the Constitution has nothing to do with conservative versus liberal views. "Conservatives are just as likely to distort the original meaning of the Constitution for their aims as liberals are," he said.
Scalia, who has said the Supreme Court's decision to strike down a law against homosexual sodomy would unleash "a massive disruption of the current social order," said his conservative views were well-known when the Senate confirmed his nomination by a 98-0 vote. That would not have happened today, he suggested, in an environment where a judge's political leanings have become more important than personal qualifications.
Out of the heated political atmosphere has come a call for more moderate judges.
"What in the world is a moderate judge?" Scalia asked. "What is a moderate interpretation of the Constitution? Halfway between what it really says and what you would like it to say?"
Scalia, who appeared as the university's third speaker in the annual Lewis F. Powell distinguished lecture series, followed his usual practice Friday of forbidding broadcast coverage of his speech. He only took questions from law students, and sidestepped one potentially controversial question about Congress' involvement in the case of Terri Schiavo, the Florida woman who recently died after her feeding tube was removed.
While the justice drew controversy last year when reporters were ordered to erase the recordings of his speech in Mississippi, journalists were allowed Friday to tape Scalia's remarks. The condition, however, was that the recordings could be used only for their personal use and not broadcast.