Stick to the original, says Scalia

“The Constitution means today what it meant when it was written,” U.S. Supreme Court Justice Antonin Scalia told an overflow crowd in Harrison Auditorium.

That is the basic tenet of a judicial philosophy Scalia calls “originalism.” In a lecture titled “Constitutional Interpretation,” he presented both sides of the argument in the fierce, ongoing debate about how to interpret the United States Constitution. Needless to say, Scalia’s side carried the day.

In a tradition that began with Justice Felix Frankfurter in 1957, Scalia delivered the Law School’s Owen J. Roberts Memorial Lecture on Feb. 13.

In introducing President George W. Bush’s favorite Supreme Court justice, Law School Dean Michael Fitts commended Scalia for his efforts to develop a general theory of legal philosophy that is at the heart of a major shift in Court thinking and praised “his energetic mind, his charming personality and his enjoyment of mental contest.” Scalia was nominated to the Court by President Ronald Reagan and has served since 1986.

Calling himself the “ancient mariner” of constitutional interpretation, Scalia remarked that it was particularly appropriate that this lecture was being given in a museum of archaeology. Invoking Justice Joseph Story (1811-1845), he said, “[Originalism] isn’t new, this was orthodoxy until the last 50 years of the 20th century.”

In his talk, Scalia contrasted his belief in “the enduring Constitution” with that of his opponents. “They believe in the ‘living Constitution,’” he said in a mocking singsong voice. “Their search is for what the Constitution ought to mean today.”

“When I was young,” Scalia said, “when people saw something they thought was wrong, they said, ‘There ought to be a law.’ Now they say, ‘It’s unconstitutional.’”

In a democracy, he said, change is codified by legislation. “If you want something...abortion rights, gay rights...go out and convince your fellow citizens and pass a law.” If and when times change, other citizens will come forward with new laws. The Constitution is the wrong place for these debates to play out. “The Constitution is not a living organism, it is a legal document.”

Scalia said that originalism is not a question of conservative versus liberal and condemned both sides as willing to distort the Constitution to fit their views. In explaining his vote defending the First Amendment rights of what he called “scruffy, sandal-wearing, bearded flag burners” in Texas v. Johnson (1989), he said, “Sometimes we originalists have to drink bitter tea.” He also rejected the title “strict constructionist,” saying “The Constitution should be interpreted reasonably.”

“Defenders of the ‘living Constitution’ say that it is an empty vessel and each generation pours in their beliefs,” he charged. “You either use the original meaning or you tell judges ‘just govern us.’” The consequence of this is that judges come under increasing political pressure and nominations for judgeships become contentious. “This is because we are selecting the people who will govern us,” he said. “Each side, right and left, is looking for people who will read in the rights they like and read out the rights they don’t like.”

A small group of demonstrators circled the sidewalk at the corner of 33rd and Spruce streets protesting Scalia’s opposition to affirmative action. In the question period following his talk, a student asked for his response to the protesters’ charges that he is racist, sexist and classist. “I deny it,” was his succinct answer.

Originally published on February 27, 2003