by Mitch Kokai
Senior Political Analyst, John Locke Foundation
The death of U.S. Supreme Court Justice Antonin Scalia at age 79 offers an opportunity to revisit an interesting presentation he made in 2007.
CARY — Confirmation battles are inevitable for the U.S. Supreme Court as long as justices ignore the doctrine of originalism, Associate Justice Antonin Scalia said during a recent visit to North Carolina.
“A mini-constitutional convention every time we nominate a new justice — it’s crazy,” Scalia told more than 200 people during the Jesse Helms Center Foundation’s 20th anniversary celebration Oct. 26. “But it’s inevitable.”
“The American people aren’t stupid. It took them a while to figure out from the Warren Court what was happening. They have finally figured out the name of the game — that the court is essentially rewriting the Constitution from decade to decade, according to whatever the justices think is a good idea,” he said.
“And once the people figure that out, they’re not going to use the criteria that they used to use to select justices,” he added. “It used to be is this person a good lawyer? [Can the nominee] read a case, understand a case, understand its background, understand how to interpret a text, have a modicum of judicial temperament? All that’s pretty good. Other things being equal it’s nice to have it. But that’s not the important thing anymore.”
He said the process has become one of finding a nominee who “is going to write the new Constitution that you want. And that’s what all this is about. That’s what all of the confirmation struggles are about.”
Scalia offered his remarks after collecting the Helms Center Foundation’s James W. Nance Medal of Freedom. That award is presented each year to “that individual in government who best exemplifies a devotion to public service and the protection of the nation’s foundational values,” according to a Helms Center news release. In 21 years on the Supreme Court, Scalia “has distinguished himself as one of the Court’s most brilliant thinkers,” according to the release.
The justice said he had prepared a speech for the event, but he decided to ignore the prepared remarks and “wing it” instead. “I’m going to talk about what I often talk about,” he said. “If I were a politician, it would be my stump speech. What I care most about and the single thing that I would most hope to be able to change in the law … is the matter of interpreting the Constitution of the United States.”
Scalia considers himself one of a “small, but hardy” group of judges and academics known as originalists, he said. “An originalist is someone who adheres to the text of the Constitution, but — more importantly — gives the text the meaning that it had when the American people adopted it,” he said. “It is such a minority view currently that people sometimes come up to me and say, ‘Justice Scalia, when did you first become an originalist?’ This is some kind of weird affliction, like ‘When did you start eating human flesh?’”
“Originalism used to be orthodoxy,” Scalia said. “Nobody ever thought the Constitution morphed. If you had told [19th-century Associate Justice] Joseph Story that what it means is going to change from decade to decade on the basis of whatever five out of nine justices on the Supreme Court think it ought to mean, he would have been uncomprehending.”
The Supreme Court did not abandon the idea of originalism until the era of Chief Justice Earl Warren, Scalia said. Warren led the high court from 1953 to 1969. “Not that judges in the past did not distort the Constitution,” Scalia said. “Of course they did. You will have willful judges with you until the end of time. But the difference was in the old days, they did it the good, honest, old-fashioned way: They lied about it. They said the Constitution meant thus and so, when it never meant thus and so.
“The change is that you don’t have to say that any more. You can say that, ‘Oh, yes, the Constitution didn’t used to prohibit hanging, for example, or it didn’t used to prohibit the death penalty.’ Of course it didn’t, inasmuch as the death penalty was the only penalty for a felony in 1791, when the Eighth Amendment was adopted. That was the definition of a felony; it was a crime punishable by death. ‘But nowadays it is unconstitutional.’ That’s extraordinary. That’s the change there’s been. You don’t have to lie about it.”
The ‘living’ Constitution
Scalia labels as “abominable” the notion that the nation’s governing document is a “living” Constitution. “I have grammar-school students who come to the court now and then, and they recite very proudly what they’ve been taught to say: ‘The Constitution is a living document.’”
Originalists have another take on the issue, Scalia said. “It is an enduring document,” he said. “It is an unchanging document. … A constitution is not a living organism. It’s a legal document. It says some things, which it means, and it doesn’t say other things.”
The notion of a living Constitution is expressed most clearly in recent Supreme Court decisions dealing with the Eighth Amendment’s “cruel and unusual punishment” clause, Scalia said. “Those opinions say explicitly that what constitutes cruel and unusual punishment is not static,” he said. “It changes from time to time to comport with ‘the evolving standards of decency that mark the progress of a maturing society.’ Isn’t that beautiful? ‘Every day in every way we get better and better.’ Societies only mature; they never rot.”
That’s a “Pollyanna-ish” frame of mind, Scalia said. The Framers of the Bill of Rights did not share that view. “The reason they framed it was that they feared a future generation would not be as wise as they were or would not be as virtuous as they were,” he said. “The purpose of the Bill of Rights was to set a floor below which the future generation could not go.”
Supporters of a living Constitution say the document needs to grow with the society it governs, Scalia said. “If you think that the proponents of a living Constitution are trying to bring you growth and flexibility, think again,” he said. “The proponents of a living Constitution are trying to bring you what a Constitution always brings: not growth, not change, but inflexibility, permanence.”
He said the Constitution, even if viewed literally, is flexible. “You want the right to an abortion? To tell you the truth, the Constitution doesn’t say a blessed thing about it,” he said. “It neither forbids the state from prohibiting it, nor does it require the states to prohibit it. It says nothing about it. Therefore, if you want the right to an abortion, create it the way most rights are created in a democracy. Persuade your fellow citizens it’s a good idea, and pass a law. And if you feel the other way, persuade your fellow citizens the other way and prohibit abortion. That’s flexibility.
“And you can change your mind. You can, for example, decide that even though the death penalty isn’t unconstitutional, it’s a bad idea. So persuade your fellow citizens to abolish it. And then later, when crime goes up, you say, ‘That was a bad idea.’ You can change your mind and go back and reinstitute it. Not with a living Constitution.”
By relying on the concept of a living Constitution, some justices hoped to outlaw capital punishment permanently, Scalia said. “Had the court abolished it, that would be the end of the matter,” he said. “It would be no use discussing whether there should or should not be a death penalty. You can’t have it. Just like abortion — driven off the democratic stage. It is no use debating that subject any more. It has been prohibited to the democratic society by the Supreme Court’s finding that the American people have eliminated it from democratic debate.”
The “living Constitution” is, in fact, the inflexible document, Scalia maintains. “So for whatever reason you like the living Constitution, don’t pretend that you like it because it brings flexibility,” he said. “It brings rigidity, which is the whole reason people come to my court instead of having to go state-by-state to get a right for abortion adopted, for example. All it takes is one decision from my court, and it’s prohibited from coast to coast — now and forever — or, I suppose, until people adopt a constitutional amendment, which is very difficult, or until the Supreme Court changes its mind.”
Conservative vs. liberal
Scalia also dispels the notion that the fight between originalism and the living Constitution is a fight between conservatives and liberals. He cited two 1996 Supreme Court decisions to prove his point. In Romer v. Evans, the court pleased social liberals by overruling a Colorado law limiting special legal protections based on sexual preference. The same day, in BMW v. Gore, the court pleased many conservatives by recognizing a right not to be charged excess punitive damages in a civil lawsuit.
“I dissented in both cases, and I say a pox on both their houses,” Scalia said. “It has nothing to do with whether you’re conservative or liberal. It has to do with what you think the Constitution is. It cuts in both directions.”
Originalism can force a judge to vote against his personal political beliefs, Scalia said. He cited the 1989 Texas v. Johnson case, in which he voted with the 5-4 Supreme Court majority that a man arrested for burning a flag during a protest outside the 1984 Republican National Convention was protected by the First Amendment.
“Basically, I don’t like people who burn the flag, but that wasn’t the law in question,” Scalia said. “The law in question was not directed at burning. It was directed at expressions of contempt for the flag. And as I understand the First Amendment, you’re entitled to express contempt for the government — even for the Supreme Court — and for the flag.”
Scalia said being an originalist means sometimes having a bad day in court, while a “non-originalist judge — the evolutionist judge — is a happy fellow.”
“He comes home from court, and his wife says, ‘Oh, dear, did you have a nice day in court?’ And he says, ‘Oh, yes. You know today we had a constitutional case. And you know what? The Constitution meant exactly what I thought it ought to be.’ No kidding. Because that’s your only criterion. Whereas if you’re an originalist, sometimes it means stuff you don’t really like. But there it is. So it’s a hard sell — calling people back to what it used to be.
The court’s role
People who disagree with the originalist view should reassess the Supreme Court’s role, Scalia said. “If you really believe the Constitution is some empty bottle into which each generation is supposed to pour that liquid it best loves, if that’s what you think it is, then Marbury v. Madison [the 1803 case regarded by legal scholars as the leading precedent for U.S. Supreme Court authority to disregard acts of Congress as unconstitutional] is wrong,” he said. “It shouldn’t be up to the Supreme Court to decide what the Constitution means. We should have a Constitution like Great Britain, where it’s the Parliament that decides.
“Do you think that I know or that my colleagues know — to quote that expression from the Eighth Amendment that I mentioned — do you think we know what are the evolving standards of decency out there? I’m afraid to ask what they are. I have no idea. I work inside the Beltway and work inside this marble palace. I don’t know what’s going on out there.
“I’ll tell you who knows,” he said. “The House of Representatives knows. They have their thumb on the pulse of America. They know what the evolving standards are. So if that’s what you think the Constitution is, then leave it up to the Congress and get the court out of the business. That’s legitimacy. Only if it’s lawyers’ work should it be our business. And if it’s lawyers’ work, that means you approach the Constitution like any statute. And we don’t think that statutes morph according to whatever we think is a good idea this year.”
Scalia challenges law students to question their professors’ legal philosophies, if they reject originalism. “Non-originalism is not a theory of constitutional interpretation,” he said. “It just means you don’t agree with Scalia. What is your theory, professor? Scalia knows what he’s looking for. He has a criterion. What did the text mean? What was it understood to mean when the American people ratified it? Did ‘cruel and unusual punishment’ mean you couldn’t have the death penalty? The answer to that is easy.
“Now if you’re not going to use Scalia’s criterion, what, professor, is your criterion? You see, when Scalia finds that it’s this way or that, you’ve got him. He’s handcuffed. He can’t do the nasty, mean, conservative things he’d like to do to the country. Now if you’re not going to control your judges that way, how are you going to control them? What do you want them to look for?
“Think about it. There really is no other criterion you can possibly use. And just as in politics, you can’t beat somebody with nobody, so also in theories of constitutional interpretation you can’t beat originalism with nothing. What else could you possibly use as a criterion? What could you tell your judges to look for? What?”
There is no alternative criterion, Scalia said. “The more you think about it, the more you realize it’s either originalism or else you essentially tell your judges, ‘Oh, wise judges, you went to Stanford Law School and Harvard and even Yale Law School. Govern us. You must know the answers to these profound philosophical questions as to whether there should be a right to abortion, whether there should be a right to suicide, whether there should be a right to homosexual conduct. After all, you went to Harvard and Yale and Stanford.’
“That’s ridiculous,” Scalia said. “There’s nothing I learned in law school that qualifies me to decide those questions any more than Joe Sixpack. He knows as much about all that as I do. It’s pre-eminently a question for legislators and not for judges. But if you don’t use the original meaning, that’s essentially what you’re telling your justices. ‘Govern us. You decide in your wisdom whether there should be this right, that right, and the other right.’”