Justice Scalia on originalist interpretation of the Constitution

By Jennifer G. Hickey
?? 2003 WorldNetDaily.com

The speech delivered by President George W. Bush at the advocacy
conference
hosted by the American Medical Association may have received the most ink,

but it did not elicit the most laughter from those in attendance. In fact,

the humor was provided by one of the most unlikely of speakers – Supreme
Court Associate Justice Antonin Scalia.

Addressing the conference with his right arm in a sling as a result of
recent shoulder surgery, the conservative jurist used a liberal dose of
sarcasm and humor in making the argument for an originalist interpretation

of the Constitution. As Republicans and Democrats in the Senate dug in
their
heels to try to stop the nomination of Miguel Estrada to the U.S. Court of

Appeals for the District of Columbia, Scalia criticized the politicization

of the nominating process, asserting that the nation’s system of justice
is
getting kicked in the teeth.

“I’ve been predicting this for 20 years – that ultimately this theory of
the
living Constitution will destroy us, it will destroy the federal courts,”
Scalia said.

The current legislative loggerheads, he said, are a result of
interpretations of the Constitution as a “living document” – one that is
flexible and adapts to a society’s ever-changing standards. Scalia argued
that as an originalist (he pleaded not to be labeled a “strict
constructionist”), he knows what he is looking for – the original intent
of
the words used by the Constitution’s authors at the time it was authored.

For instance, by specifically mentioning the right to a trial by jury in
“capital” cases, the drafters left no doubt that they did not consider the

death penalty to be cruel and unusual punishment (as has been argued by
proponents of a “living Constitution”). If a judge adheres to the original

intent, Scalia said, he also is bound by it regardless of his own personal

beliefs. “If you don’t want your judges confined by that, what do you want

your judges confined by?” the justice asked.

Once the American people become aware that jurists are not using the
original meaning of the Constitution as their guide, they will realize the

judges must be making it up. “Once the people figure out what the game is,

they will say, ‘We will select our judges on the basis of who will create
the Constitution that we desire.’ You are watching this play out before
your
very eyes,” Scalia said, referring to the judicial crisis that has
resulted
from inaction by the Senate on pending nominations.

Often depicted in frightening terms by his critics, Scalia displayed a
strong sense of humor in outlining his judicial philosophy, as well as in
describing the wrongheadedness of “living constitutionalists” who revel in

what they see as the Constitution’s recognition of the “evolving standards

of decency that mark the progress of mature society.” Repeating the phrase

with sarcastic glee, Scalia inquired why “better societies only mature;
[do]
they never rot?”

Decried and demonized most often by liberals, Scalia advised the audience
not to view the debate in terms of liberal versus conservative because
“conservative Republicans are just as willing to distort the Constitution
to
their aims as are liberal Democrats. It has nothing to do with your social

views.”

He illustrated his point with two decisions handed down by the Supreme
Court
on the same day in 1996. In the first case (Romer v. Evans), the court
ruled
as unconstitutional an initiative passed by voters in Colorado denying
special legal protection to homosexuals. It was deemed unconstitutional,
said Scalia, in “violation of … I have no idea. The sexual-preference
clause?”

Liberals cheered the ruling, while conservatives derided it. The other
case
(BMW v. Gore) involved the question of whether a punitive award could be
so
grossly excessive that it would violate the due-process clause of the 14th

Amendment. At issue was incidental damage done to Ira Gore’s new BMW (or,
as
Scalia called it, his “Beemer”). The car was repainted, but BMW did not
tell
Gore about the damage when selling it to him. A jury decided this
constituted fraud and awarded Gore $4,000 in compensatory damages for
reduced value of the car and $4 million in punitive damages.

The Supreme Court ruled 5-4 that the punitive-damage award was “grossly
excessive” and, as Scalia added, “unconstitutional and a violation of …
I
have no idea. The freedom-from-excessive-punitive-damages clause of the
Constitution?”

Conservatives applauded and liberals jeered, but Scalia says a pox should
be
on both their houses. The Constitution was written to establish and
protect
American rights, as well as to prevent future generations who might not be

as virtuous or wise as the Framers who wrote it from doing some foolish or

evil things, he said.

“Its meaning doesn’t change,” Scalia contended. “To achieve change, all
you
need is a legislature and a ballot box. Things will change just as fast as

you like.” Instead of creating new rights in a way in which democracies
normally do – by passing laws – proponents delight in the idea of a living

Constitution because it enables judges who agree with their idea of change

to insert a “right” that cannot be overturned. This is easier than
engaging
in the systematic process of persuading fellow citizens of the worth of a
particular right and passing that right into law.

In adopting an originalist interpretation, Scalia told the audience,
judges
often find themselves supporting a right to which they personally are
opposed. In siding with the majority in a 5-4 ruling protecting the right
to
burn the flag, Scalia said he was bound by the First Amendment regardless
of
his views – and those of his wife. The day after the ruling, Scalia said
he
came down for breakfast to find the banner of the Washington Post
heralding
the decision and his annoyed wife humming “Stars and Stripes Forever.”

Added Scalia, “If you have to be bound by what it meant when it was
adopted
you often have to reach results you don’t particularly like.”

Asked by an audience member about his views on the due-process rights of
enemy combatants currently detained at Guantanamo Bay, Scalia refrained
from
addressing specifics. However, he said the likely question at issue if a
case comes before the Supreme Court would be who has rights under the
Constitution.

“Americans abroad, Americans anywhere, have rights under the Constitution.

Aliens in the United States have rights under the American Constitution.
But
to say that aliens abroad have rights under the Constitution, well I am
not
sure I can govern that much territory,” remarked Scalia to a clearly
entertained audience. However, he concluded, there probably is a reason
why
the holding base is on Guantanamo Bay and not in Cuba.

Scalia will continue to be a lightning rod in the current debate over
Estrada’s nomination and in other Supreme Court nomination battles, but
members of this audience left entertained by his wit and perhaps
enlightened
by his wisdom.

Jennifer G. Hickey is a writer for Insight.