The U.S. Constitution is not flexible, Supreme Court Justice Antonin Scalia told a University of Minnesota audience Tuesday night. It can be amended according to the rules that are laid out in the text of the document itself, but it does not “evolve.” Its text should not be brought up to date to align itself with the more enlightened views of the 21st century. And it certainly shouldn’t be updated according to the policy preferences of the nine unelected, unrepresentative and unaccountable justices of the U.S. Supreme Court.
Scalia, the leading “originalist” on the court, argues that the Constitution’s words mean what they meant to those who ratified them more than two centuries ago (except for the amendments, but those also mean and must forever mean what they meant to Americans at the time they were adopted). His presentation to a packed Northrop Auditorium was a funny, clear, full-throated defense that originalism is the only valid way to try to find the meaning of the words in the basic law of the United States.
If you try, Scalia said, it’s generally possible to construe that meaning correctly. And then, if you are a judge, your job is to apply the law according to that meaning, even if it leads to results that don’t fit with your values or your ideas of what’s best for an evolving society.
Although he spoke — often hilariously — for almost two hours, what I just said he said is what he said, and not much else. It would have been nice to hear his views contrasted with those who belong to other schools of constitutional jurisprudence, including those who believe it is not always so clear what the constitutional language means and those who believe our understanding of the Constitution evolves.
But instead, the other schools were described only by Scalia, who treats them mostly with sarcasm.
Nowadays we have “a living Constitution,” he sarcasted. It means “what it ought to mean today.”
The Supreme Court recently overruled the power of the states to decide many things for themselves, Scalia said. It made same-sex marriage the law of the land, based on the idea that some rights are so fundamental and embedded in our history that they must be upheld according to the constitutional doctrine of … “I have no idea,” Scalia said, using a little comedy bit he relied on several times during talk to imply that the court’s majority in many of these cases can’t cite history, logic or law, so they make up stuff like “evolving standards of decency.”
The liberal justices claim to find “rights” that — even though they are not mentioned in the text that enumerates our rights — are “embedded in the American tradition” and then they legalize things like same-sex marriage, sodomy and abortion, even though these things — rather than being embedded in our tradition — were illegal for all or most of two-plus centuries of American history.
But things in the Constitution that strike us as out-of-date, things that we might all agree are stupid, things that perhaps should be revised by the elected branches, are nonetheless constitutional because they are in the Constitution. Scalia said all federal judges should be issued a rubber stamp and an inkpad so when matters like that come before them from plaintiffs looking for constitutional change, they can be stamped “Stupid but Constitutional.”
Scalia, the longest-tenured member of the court (he’s been there 29 years) and second oldest (he’s 79, Ruth Bader Ginsburg is 82), is the justice liberals love to hate. (Amazingly, when he was nominated by President Ronald Reagan, he was asked very few questions during his confirmation hearings and was approved on a unanimous Senate vote. Things have changed since 1986.)
Scalia argued last night that his method of constitutional interpretation (the only legitimate and democratic method, according to him) is not about reaching conservative outcomes, although it often does. He said he has provided the deciding vote in coalition with the court’s liberals in favor of liberal outcomes when his originalist, textualist method led him to that result. (The example he gave was a ruling upholding the right of protesters to burn the American flag and the lack of power of Congress or the states to outlaw such protests. Then he told the story of coming to find his wife, who he said is a very conservative person, humming the tune of “It’s a Grand Old Flag.”)
Death penalty prediction
He and Clarence Thomas are the only real originalists on the court, Scalia said, although a couple of others are “fair weather originalists” (which I take to mean that he believes they rely on originalist logic when it gets them where they want to go). Scalia predicted that before long, the death penalty will be struck down.
Scalia spoke at the university’s annual endowed lecture on the law. Last year’s speaker was Ginsburg, Scalia’s closest friend on the Supreme Court, even though they generally cancel out one another’s vote on the court. The man who endowed the lecture series, Robert Stein, a 51-year veteran of the law school faculty, interviewed Scalia. But first, Scalia gave a lecture on — guess what? — originalism.
The “killer argument” in favor of originalism, he said, is the undemocratic character of the court. Justices weren’t elected and don’t have to stand for reelection. Deciding what’s best for a majority of Americans (most of whom, he said, are Protestants) are the current justices, “six Catholics and three Jews.” Seven of the nine come from New York or California. The unrepresentative nature of the court wouldn’t be a problem if they were behaving like lawyers, reading and analyzing the law rather than making it up. But if the law doesn’t mean what it meant to those who made the law, then it means whatever these unelected lawgivers think it should mean.
Scalia also took questions, first from Stein, then from the audience. During those exchanges he said:
Everyone seems to want more “moderate justices.” But what’s a moderate justice? “Someone who splits the meaning of the text halfway between what it says and what he thinks it should say.”
One questioner challenged the “corporations are people and have First Amendment rights” ruling in the Citizens United case. Scalia sounded exasperated at having to explain the logic behind that highly controversial ruling. The New York Times is a corporation, he said. It obviously is covered by the First Amendment. “What are you going to do about the New York Times — those of you who think Citizens United was wrongly decided? [Then, putting his hand up to face in a mocking, stage-whisper gesture, he stage whispered:] The answer to that question is that there is no answer to that question.”
The last question he took challenged the idea of the Constitution’s permanent authority on the grounds that many Americans had no right to participate in process at the time of its adoption.
“Dead white males, right?” Scalia replied, clarifying what he (accurately) took to be the questioner’s point. “Look, you either accept the Constitution as a valid document. Or you reject it. But you can’t play it both ways. You can’t say ‘the Constitution’s valid in the way the House and the Senate are composed, etc., all of that is perfectly good. But the things I don’t like. They were adopted by dead white males.’ You gotta be consistent. If you believe what you say, you should lead a revolution.”