By Kevin Foley Article published October 12, 2004
The Constitution, says United States Supreme Court Associate Justice Antonin Scalia, is dead.
The conservative jurist, whom President Daniel Mark Fogel praised in introductory remarks for his “legal genius and rhetorical power,” discussed Constitutional interpretation in an Oct. 8 talk at Ira Allen Chapel. But for most of his blunt and amusing talk, Scalia emphasized the Constitution and minimized the interpretation.
“I am a believer in the method called originalism,” he said, “which, in a nutshell, says that you look at the text of the Constitution… and you give the text the meaning it had when it was adopted. Is the death penalty in the Constitution? Not a hard question for an originalist. The death penalty was the only punishment for felonies in 1791.”
Scalia argued that the alternative to originalism is to treat the Constitution as a “living document,” which he said amounts to having a Constitution that morphs from year to year, depending on the societal mood. This is fundamentally undemocratic, he argued — how can lawyers entombed in a “marble palace in Washington” determine a society’s mood? Aren’t representatives elected by the people better suited to this? And who or what checks the powers of judges, if they can forestall political discussion by “finding” new rights in the Constitution?
The justice cheerfully admitted that only a minority of lawyers and jurists currently share his philosophy. But for most of the nation’s history, he argued, the opposite was true. The 19th Amendment, which gave women suffrage, is an example of the past’s originalist assumption, Scalia argued. “Why did we adopt the amendment,” he said. “We already had an equal-protection clause.” Because Americans didn’t think the clause could be expanded and reinterpreted to give women suffrage; instead, they created a new right through democratic, rather than legal, process, which is the way Scalia believes the system should work.
This, to Scalia, is flexibility. The alternative — his rhetorical device of an eternally up-for-grabs “living Constitution” is, ironically, rigidity. He said judges who find Constitutional rights the framers never intended take important issues out of the public space of democratic debate and suspend them in a sort of legal formaldehyde.
“My Constitution produces a very flexible system. You want the death penalty, the Constitution does not prevent you from having it; you don’t want the death penalty, you persuade your fellow citizens and abolish it by statute. The Constitution doesn’t prevent you.” Scalia said. He went on, “…You create rights the way most rights are created in a democracy. You can change it if your first thought produces a result that you don’t like. The living constitution… that’s not a flexible system. Every time the Supreme Court defines an aspect of the Constitution, it reduces debate. Every time we find some new right in the Constitution which was never put there by the framers, the debate ends.”
While conservatives like Scalia tend to favor “stricter” Constitutional interpretation at this historical moment, while liberals tend to favor application of Constitutional principles and language to dilemmas not anticipated by the framers, Scalia warned that this view carries some dangerous assumptions. He argued that societies don’t necessarily evolve toward more freedom, enlightenment and democracy.
“This idea that societies only mature, they never rot. That principle was not the attitude possessed for sure by the framers of the Bill of Rights. Why have a Bill of Rights if in every day and in every way we all get better and better?”
He argued that the risk of a system of laws whose basis is up for interpretation and reinterpretation cuts across political lines, and threatens the basis of the system itself. Scalia said “the end of the road is not happy.” He himself was confirmed 98-0 in 1986, a result that’s no longer possible, as the battles over other judicial nominees portends. Scalia said that is because people have “figured out what’s going on” and have decided to “put the kind of people on the court who will write the kind of Constitution we like.”
That result, Scalia said, is deeply ironic.
“The people will decide what the Bill of Rights means. Who do you think the Bill of Rights is meant to protect? The people. It’s meant to protect you against the tyranny of the majority,” he said.
The results of politicizing the process cut both ways, Scalia said, pointing to two decisions issued on the same day in 1996, Romer v. Evans and BMW v. Gore (we’ll get to Bush v. Gore below). In the Romer case, the court decided that a voter-approved amendment to Colorado’s state constitution that forbade adding sexual orientation to classes of people protected by anti-discrimination laws was a violation of the equal protection clause of the 14th Amendment (Scalia dissented). “The liberals cheered, the conservatives gnashed their teeth,” Scalia told the UVM audience.
But the same day, the Gore decision rejected a large punitive damages award, a result probably appealing to political conservatives concerned about lawsuit costs. Scalia also dissented in this case, finding the decision an unjustified incursion into issues appropriately decided by states.
“Conservatives are as willing to use the doctrine of the living Constitution to effect their goals the liberals are… why do [liberals] think this is a one-way street? Once you depart from the text, things could go either way,” Scalia said.
Given that, Scalia said in closing, “You may find that the dead constitution is to your liking.” He paused, deadpan. “I can package it better than that. Let’s call it the enduring constitution.”