An Act to regulate the jurisdiction of the Supreme Court and all inferior Courts of the United States
Sec. 4. That any question of Constitutionality of any law of any state may only be decided by petition of one or more state legislatures to the Congress of the United States fully assembled, and further any such question may only be adjudicated by not less than a three-fourths majority of both the Senate and the House of Representatives concurring.
Sec. 5. Absent concurrence and decision of both houses, the original intention of the Constitution, and the legislative history of any Amendments shall control.
Sec. 13. That henceforth, this Judiciary Act of 2005, may only be amended by a concurrent vote of three-quarters of the total membership of both houses of Congress, all other acts, rules, procedures, and provisions of each house excluded.
Editors’ Note: We thought some of you might be interested in the views of Associate Justice Antonin Scalia about the original intention of the Constitution. There should be no Justice or judge appointed or confirmed to the Supreme Court or any other Court who does not hold similar views! It is the “supreme law of the land”.
Constitutional Interpretation the Old Fashioned Way
Justice Antonin Scalia delivered the following remarks at the Woodrow Wilson International Center for Scholars in Washington, D.C., on March 14, 2005.
JUSTICE SCALIA: It’s a pizzazzy topic: Constitutional Interpretation. It is however an important one. I was vividly reminded how important it was last week when the Court came out with a controversial decision in the Roper case. And I watched one television commentary on the case in which the host had one person defending the opinion on the ground that people should not be subjected to capital punishment for crimes they commit when they are younger than eighteen, and the other person attacked the opinion on the ground that a jury should be able to decide that a person, despite the fact he was under eighteen, given the crime, given the person involved, should be subjected to capital punishment. And it struck me how irrelevant it was, how much the point had been missed. The question wasn’t whether the call was right or wrong. The important question was who should make the call. And that is essentially what I am addressing today.
I am one of a small number of judges, small number of anybody — judges, professors, lawyers — who are known as originalists. Our manner of interpreting the Constitution is to begin with the text, and to give that text the meaning that it bore when it was adopted by the people. I’m not a “strict constructionist,” despite the introduction. I don’t like the term “strict construction.” I do not think the Constitution, or any text should be interpreted either strictly or sloppily; it should be interpreted reasonably. Many of my interpretations do not deserve the description “strict.” I do believe, however, that you give the text the meaning it had when it was adopted.
This is such a minority position in modern academia and in modern legal circles that on occasion I’m asked when I’ve given a talk like this a question from the back of the room — “Justice Scalia, when did you first become an originalist?” — as though it is some kind of weird affliction that seizes some people — “When did you first start eating human flesh?”
Although it is a minority view now, the reality is that, not very long ago, originalism was orthodoxy. Everybody, at least purported to be an originalist. If you go back and read the commentaries on the Constitution by Joseph Story, he didn’t think the Constitution evolved or changed. He said it means and will always mean what it meant when it was adopted.
Or consider the opinions of John Marshall in the Federal Bank case, where he says, we must not, we must always remember it is a constitution we are expounding. And since it’s a constitution, he says, you have to give its provisions expansive meaning so that they will accommodate events that you do not know of which will happen in the future.
Well, if it is a constitution that changes, you wouldn’t have to give it an expansive meaning. You can give it whatever meaning you want and, when future necessity arises, you simply change the meaning. But anyway, that is no longer the orthodoxy.
Oh, one other example about how not just the judges and scholars believed in originalism, but even the American people. Consider the 19th Amendment, which is the amendment that gave women the vote. It was adopted by the American people in 1920. Why did we adopt a constitutional amendment for that purpose? The Equal Protection Clause existed in 1920; it was adopted right after the Civil War. And you know that if the issue of the franchise for women came up today, we would not have to have a constitutional amendment. Someone would come to the Supreme Court and say, “Your Honors, in a democracy, what could be a greater denial of equal protection than denial of the franchise?” And the Court would say, “Yes! Even though it never meant it before, the Equal Protection Clause means that women have to have the vote.” But that’s not how the American people thought in 1920. In 1920, they looked at the Equal Protection Clause and said, “What does it mean?” Well, it clearly doesn’t mean that you can’t discriminate in the franchise — not only on the basis of sex, but on the basis of property ownership, on the basis of literacy. None of that is unconstitutional. And therefore, since it wasn’t unconstitutional, and we wanted it to be, we did things the good old fashioned way and adopted an amendment.
Now, in asserting that originalism used to be orthodoxy, I do not mean to imply that judges did not distort the Constitution now and then, of course they did. We had willful judges then, and we will have willful judges until the end of time. But the difference is that prior to the last 50 years or so, prior to the advent of the “Living Constitution,” judges did their distortions the good old fashioned way, the honest way — they lied about it. They said the Constitution means such and such, when it never meant such and such.
It’s a big difference that you now no longer have to lie about it, because we are in the era of the evolving Constitution. And the judge can simply say, “Oh yes, the Constitution didn’t used to mean that, but it does now.” We are in the age in which not only judges, not only lawyers, but even school children have come to learn the Constitution changes. I have grammar school students come into the Court now and then, and they recite very proudly what they have been taught: “The Constitution is a living document.” You know, it morphs.
Well, let me first tell you how we got to the “Living Constitution.” You don’t have to be a lawyer to understand it. The road is not that complicated. Initially, the Court began giving terms in the text of the Constitution a meaning they didn’t have when they were adopted. For example, the First Amendment, which forbids Congress to abridge the freedom of speech. What does the freedom of speech mean? Well, it clearly did not mean that Congress or government could not impose any restrictions upon speech. Libel laws, for example, were clearly constitutional. Nobody thought the First Amendment was carte blanche to libel someone. But in the famous case of New York Times v. Sullivan, the Supreme Court said, “But the First Amendment does prevent you from suing for libel if you are a public figure and if the libel was not malicious” — that is, the person, a member of the press or otherwise, thought that what the person said was true. Well, that had never been the law. I mean, it might be a good law. And some states could amend their libel law.
It’s one thing for a state to amend it’s libel law and say, “We think that public figures shouldn’t be able to sue.” That’s fine. But the courts have said that the First Amendment, which never meant this before, now means that if you are a public figure, that you can’t sue for libel unless it’s intentional, malicious. So that’s one way to do it.
Another example is the Constitution guarantees the right to be represented by counsel. That never meant the state had to pay for your counsel. But you can reinterpret it to mean that.
That was step one. Step two, I mean, that will only get you so far. There is no text in the Constitution that you could reinterpret to create a right to abortion, for example. So you need something else. The something else is called the doctrine of “Substantive Due Process.” Only lawyers can walk around talking about substantive process, in as much as it’s a contradiction in terms. If you referred to substantive process or procedural substance at a cocktail party, people would look at you funny. But, lawyers talk this way all the time.
What substantive due process is is quite simple — the Constitution has a Due Process Clause, which says that no person shall be deprived of life, liberty or property without due process of law. Now, what does this guarantee? Does it guarantee life, liberty or property? No, indeed! All three can be taken away. You can be fined, you can be incarcerated, you can even be executed, but not without due process of law. It’s a procedural guarantee. But the Court said, and this goes way back, in the 1920s at least, in fact the first case to do it was Dred Scott. But it became more popular in the 1920s. The Court said there are some liberties that are so important, that no process will suffice to take them away. Hence, substantive due process.
Now, what liberties are they? The Court will tell you. Be patient. When the doctrine of substantive due process was initially announced, it was limited in this way, the Court said it embraces only those liberties that are fundamental to a democratic society and rooted in the traditions of the American people.
Then we come to step three. Step three: that limitation is eliminated. Within the last 20 years, we have found to be covered by due process the right to abortion, which was so little rooted in the traditions of the American people that it was criminal for 200 years; the right to homosexual sodomy, which was so little rooted in the traditions of the American people that it was criminal for 200 years. So it is literally true, and I don’t think this is an exaggeration, that the Court has essentially liberated itself from the text of the Constitution, from the text and even from the traditions of the American people. It is up to the Court to say what is covered by substantive due process.
What are the arguments usually made in favor of the Living Constitution? As the name of it suggests, it is a very attractive philosophy, and it’s hard to talk people out of it — the notion that the Constitution grows. The major argument is the Constitution is a living organism, it has to grow with the society that it governs or it will become brittle and snap.
This is the equivalent of, an anthropomorphism equivalent to what you hear from your stockbroker, when he tells you that the stock market is resting for an assault on the 11,000 level. The stock market panting at some base camp. The stock market is not a mountain climber and the Constitution is not a living organism for Pete’s sake; it’s a legal document, and like all legal documents, it says some things, and it doesn’t say other things. And if you think that the aficionados of the Living Constitution want to bring you flexibility, think again.
My Constitution is a very flexible Constitution. You think the death penalty is a good idea — persuade your fellow citizens and adopt it. You think it’s a bad idea — persuade them the other way and eliminate it. You want a right to abortion — create it the way most rights are created in a democratic society, persuade your fellow citizens it’s a good idea and enact it. You want the opposite — persuade them the other way. That’s flexibility. But to read either result into the Constitution is not to produce flexibility, it is to produce what a constitution is designed to produce — rigidity. Abortion, for example, is offstage, it is off the democratic stage, it is no use debating it, it is unconstitutional. I mean prohibiting it is unconstitutional; I mean it’s no use debating it anymore — now and forever, coast to coast, I guess until we amend the Constitution, which is a difficult thing. So, for whatever reason you might like the Living Constitution, don’t like it because it provides flexibility.
That’s not the name of the game. Some people also seem to like it because they think it’s a good liberal thing — that somehow this is a conservative/liberal battle, and conservatives like the old fashioned originalist Constitution and liberals ought to like the Living Constitution. That’s not true either. The dividing line between those who believe in the Living Constitution and those who don’t is not the dividing line between conservatives and liberals.
Conservatives are willing to grow the Constitution to cover their favorite causes just as liberals are, and the best example of that is two cases we announced some years ago on the same day, the same morning. One case was Romer v. Evans, in which the people of Colorado had enacted an amendment to the state constitution by plebiscite, which said that neither the state nor any subdivision of the state would add to the protected statuses against which private individuals cannot discriminate. The usual ones are race, religion, age, sex, disability and so forth. Would not add sexual preference — somebody thought that was a terrible idea, and, since it was a terrible idea, it must be unconstitutional. Brought a lawsuit, it came to the Supreme Court. And the Supreme Court said, “Yes, it is unconstitutional.” On the basis of — I don’t know. The Sexual Preference Clause of the Bill of Rights, presumably. And the liberals loved it, and the conservatives gnashed their teeth.
The very next case we announced is a case called BMW v. [Gore]. Not the [Gore] you think; this is another [Gore]. Mr. [Gore] had bought a BMW, which is a car supposedly advertised at least as having a superb finish, baked seven times in ovens deep in the Alps, by dwarfs. And his BMW apparently had gotten scratched on the way over. They did not send it back to the Alps, they took a can of spray-paint and fixed it. And he found out about this and was furious, and he brought a lawsuit. He got his compensatory damages, a couple of hundred dollars — the difference between a car with a better paint job and a worse paint job — plus $2 million against BMW for punitive damages for being a bad actor, which is absurd of course, so it must be unconstitutional. BMW appealed to my Court, and my Court said, “Yes, it’s unconstitutional.” In violation of, I assume, the Excessive Damages Clause of the Bill of Rights. And if excessive punitive damages are unconstitutional, why aren’t excessive compensatory damages unconstitutional? So you have a federal question whenever you get a judgment in a civil case. Well, that one the conservatives liked, because conservatives don’t like punitive damages, and the liberals gnashed their teeth.
I dissented in both cases because I say, “A pox on both their houses.” It has nothing to do with what your policy preferences are; it has to do with what you think the Constitution is.
Some people are in favor of the Living Constitution because they think it always leads to greater freedom — there’s just nothing to lose, the evolving Constitution will always provide greater and greater freedom, more and more rights. Why would you think that? It’s a two-way street. And indeed, under the aegis of the Living Constitution, some freedoms have been taken away.
Recently, last term, we reversed a 15-year-old decision of the Court, which had held that the Confrontation Clause — which couldn’t be clearer, it says, “In all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witness against him.” But a Living Constitution Court held that all that was necessary to comply with the Confrontation Clause was that the hearsay evidence which is introduced — hearsay evidence means you can’t cross-examine the person who said it because he’s not in the court — the hearsay evidence has to bear indicia of reliability. I’m happy to say that we reversed it last term with the votes of the two originalists on the Court. And the opinion said that the only indicium of reliability that the Confrontation Clause acknowledges is confrontation. You bring the witness in to testify and to be cross-examined. That’s just one example, there are others, of eliminating liberties.
So, I think another example is the right to jury trial. In a series of cases, the Court had seemingly acknowledged that you didn’t have to have trial by jury of the facts that increase your sentence. You can make the increased sentence a “sentencing factor” — you get 30 years for burglary, but if the burglary is committed with a gun, as a sentencing factor the judge can give you another 10 years. And the judge will decide whether you used a gun. And he will decide it, not beyond a reasonable doubt, but whether it’s more likely than not. Well, we held recently, I’m happy to say, that this violates the right to a trial by jury. The Living Constitution would not have produced that result. The Living Constitution, like the legislatures that enacted these laws would have allowed sentencing factors to be determined by the judge because all the Living Constitution assures you is that what will happen is what the majority wants to happen. And that’s not the purpose of constitutional guarantees.
Well, I’ve talked about some of the false virtues of the Living Constitution, let me tell you what I consider its principle vices are. Surely the greatest — you should always begin with principle — its greatest vice is its illegitimacy. The only reason federal courts sit in judgment of the constitutionality of federal legislation is not because they are explicitly authorized to do so in the Constitution. Some modern constitutions give the constitutional court explicit authority to review German legislation or French legislation for its constitutionality, our Constitution doesn’t say anything like that. But John Marshall says in Marbury v. Madison: Look, this is lawyers’ work. What you have here is an apparent conflict between the Constitution and the statute. And, all the time, lawyers and judges have to reconcile these conflicts — they try to read the two to comport with each other. If they can’t, it’s judges’ work to decide which ones prevail. When there are two statutes, the more recent one prevails. It implicitly repeals the older one. But when the Constitution is at issue, the Constitution prevails because it is a “superstatute.” I mean, that’s what Marshall says: It’s judges’ work.
If you believe, however, that the Constitution is not a legal text, like the texts involved when judges reconcile or decide which of two statutes prevail; if you think the Constitution is some exhortation to give effect to the most fundamental values of the society as those values change from year to year; if you think that it is meant to reflect, as some of the Supreme Court cases say, particularly those involving the Eighth Amendment, if you think it is simply meant to reflect the evolving standards of decency that mark the progress of a maturing society — if that is what you think it is, then why in the world would you have it interpreted by nine lawyers? What do I know about the evolving standards of decency of American society? I’m afraid to ask.
If that is what you think the Constitution is, then Marbury v. Madison is wrong. It shouldn’t be up to the judges, it should be up to the legislature. We should have a system like the English — whatever the legislature thinks is constitutional is constitutional. They know the evolving standards of American society, I don’t. So in principle, it’s incompatible with the legal regime that America has established.
Secondly, and this is the killer argument — I mean, it’s the best debaters argument — they say in politics you can’t beat somebody with nobody, it’s the same thing with principles of legal interpretation. If you don’t believe in originalism, then you need some other principle of interpretation. Being a non-originalist is not enough. You see, I have my rules that confine me. I know what I’m looking for. When I find it — the original meaning of the Constitution — I am handcuffed. If I believe that the First Amendment meant when it was adopted that you are entitled to burn the American flag, I have to come out that way even though I don’t like to come out that way. When I find that the original meaning of the jury trial guarantee is that any additional time you spend in prison which depends upon a fact must depend upon a fact found by a jury — once I find that’s what the jury trial guarantee means, I am handcuffed. Though I’m a law-and-order type, I cannot do all the mean conservative things I would like to do to this society. You got me.
Now, if you’re not going to control your judges that way, what other criterion are you going to place before them? What is the criterion that governs the Living Constitutional judge? What can you possibly use, besides original meaning? Think about that. Natural law? We all agree on that, don’t we? The philosophy of John Rawls? That’s easy. There really is nothing else. You either tell your judges, “Look, this is a law, like all laws, give it the meaning it had when it was adopted.” Or, you tell your judges, “Govern us. You tell us whether people under 18, who committed their crimes when they were under 18, should be executed. You tell us whether there ought to be an unlimited right to abortion or a partial right to abortion. You make these decisions for us.” I have put this question — you know I speak at law schools with some frequency just to make trouble — and I put this question to the faculty all the time, or incite the students to ask their Living Constitutional professors: “Okay professor, you are not an originalist, what is your criterion?” There is none other.
And finally, this is what I will conclude with although it is not on a happy note. The worst thing about the Living Constitution is that it will destroy the Constitution. You heard in the introduction that I was confirmed, close to 19 years ago now, by a vote of 98 to nothing. The two missing were Barry Goldwater and Jake Garnes, so make it 100. I was known at that time to be, in my political and social views, fairly conservative. But still, I was known to be a good lawyer, an honest man — somebody who could read a text and give it its fair meaning — had judicial impartiality and so forth. And so I was unanimously confirmed. Today, barely 20 years later, it is difficult to get someone confirmed to the Court of Appeals. What has happened? The American people have figured out what is going on. If we are selecting lawyers, if we are selecting people to read a text and give it the fair meaning it had when it was adopted, yes, the most important thing to do is to get a good lawyer. If on the other hand, we’re picking people to draw out of their own conscience and experience a new constitution with all sorts of new values to govern our society, then we should not look principally for good lawyers. We should look principally for people who agree with us, the majority, as to whether there ought to be this right, that right and the other right. We want to pick people that would write the new constitution that we would want.
And that is why you hear in the discourse on this subject, people talking about moderate, we want moderate judges. What is a moderate interpretation of the text? Halfway between what it really means and what you’d like it to mean? There is no such thing as a moderate interpretation of the text. Would you ask a lawyer, “Draw me a moderate contract?” The only way the word has any meaning is if you are looking for someone to write a law, to write a constitution, rather than to interpret one. The moderate judge is the one who will devise the new constitution that most people would approve of. So, for example, we had a suicide case some terms ago, and the Court refused to hold that there is a constitutional right to assisted suicide. We said, “We’re not yet ready to say that. Stay tuned, in a few years, the time may come, but we’re not yet ready.” And that was a moderate decision, because I think most people would not want — if we had gone, looked into that and created a national right to assisted suicide, that would have been an immoderate and extremist decision.
I think the very terminology suggests where we have arrived — at the point of selecting people to write a constitution, rather than people to give us the fair meaning of one that has been democratically adopted. And when that happens, when the Senate interrogates nominees to the Supreme Court, or to the lower courts — you know, “Judge so-and-so, do you think there is a right to this in the Constitution? You don’t? Well, my constituents think there ought to be, and I’m not going to appoint to the court someone who is not going to find that” — when we are in that mode, you realize, we have rendered the Constitution useless, because the Constitution will mean what the majority wants it to mean. The senators are representing the majority, and they will be selecting justices who will devise a constitution that the majority wants. And that, of course, deprives the Constitution of its principle utility. The Bill of Rights is devised to protect you and me against, who do you think? The majority. My most important function on the Supreme Court is to tell the majority to take a walk. And the notion that the justices ought to be selected because of the positions that they will take, that are favored by the majority, is a recipe for destruction of what we have had for 200 years.
To come back to the beginning, this is new — 50 years old or so — the Living Constitution stuff. We have not yet seen what the end of the road is. I think we are beginning to see. And what it is should really be troublesome to Americans who care about a Constitution that can provide protections against majoritarian rule. Thank you.
Scalia Question and Answers
This is the transcription of the Question and Answer period subsequent to Justice Scalia’s speech at the Wilson Center on March 14, 2005.
Mr. Hamilton: Thank you very much Justice Scalia, that’s quite fascinating. You may stand or sit as you prefer…
Justice Scalia: I’d like to hide behind something.
Mr. Hamilton: OK, we’ll let you hide behind the podium. We’ll have, Flip, we’ll begin with you. Flip Strum. We’ll go for about fifteen minutes here, I might say. I want to Bill Coleman is here, former Secretary of Transportation, a good friend of the Wilson Center. Bill we’re delighted to have you.
Justice Scalia: Bill, how are you?
Flip Strum: Justice Scalia, you started by talking about Roper. And if we can go back to the Court’s concept of evolving standards that it used in Roper. In Roper and Atkins, you said that in looking at capital punishment cases, and the whole question of whether mentally retarded people or people below the age of eighteen could be put to death, you said that the legislature, if there are evolving standards of decency which should be used to interpret the Eighth Amendment, that they should be enunciated by the legislatures or by the sentencing jurors. So I’m wondering, given that, are you x-ing out the possibility of real judicial review for Eighth Amendment capital cases? Would you just kind of explain your Eighth Amendment jurisprudence a little bit?
Justice Scalia: I think, I didn’t say that if there is to be an evolution of standards under the Eighth Amendment, it’s up to the legislature. No, the legislature can’t change the Eighth Amendment. I’m saying the Eighth Amendment means what was cruel and unusual and unconstitutional in 1791 remains that today. The death penalty wasn’t, and hence it isn’t, despite the fact that I sat with three colleagues that thought it had become unconstitutional. Executing someone under eighteen was not unconstitutional in 1791, so it is not unconstitutional today. Now, it may be very stupid. It may be a very bad idea, just as notching ears, which was a punishment in 1791, is a very bad idea. But the people can change, the people can eliminate those stupidities if and when they want. To evolve, you don’t need a constitution. All you need is a legislature a ballot box. Things will evolve as much as you want. They can create a right to abortion. They can abolish the death penalty. They can legitimize homosexual sodomy. All of these things, all of these changes can come about democratically. You don’t need a constitution to do that. And it’s not the function of a constitution to do that.
Mr. Hamilton: Kent Hughes. Kent.
Kent Hughes: Mr. Justice Scalia, what do you think has caused the emergence of the Living Constitution doctrine? What were the forces in society, were there pressures that were not responded to by the legislature? What caused the emergence of this new doctrine?
Justice Scalia: I don’t know. Perhaps the question should be: how did we get away without having it develop much sooner. I mean it’s enormously seductive to a judge. The Living Constitution judge is a happy fellow. He comes home at night and his wife says, “Dear, did you have a good day on the bench?” “Oh, yes. We had a constitutional case today. And you know what? The Constitution meant exactly what I thought it ought to mean!” Well of course it does, because that’s your only criterion. That’s a very seductive philosophy. So it’s no surprise that it should take the society by storm. And it is the same thing for the man or woman in the street: to know that everything you care passionately about, whether it’s abortion or suicide, or whatever you care passionately about, it’s there in the Constitution. What a happy feeling. That’s what causes it. And that’s what makes it hard to call the society back from it. It’s tough medicine.
Mr. Hamilton: Katherine Mothersby, do you have a question?
Katherine Mothersby: Well I have to complain to Kent that he stole my question. I also, as a historian, am jumping to ask, there must be some more persuasive explanation for the shift.
Justice Scalia: I didn’t give you an explanation.
Katherine Mothersby: I know.
Justice Scalia: I just said a better question is why didn’t it happen earlier.
Katherine Mothersby: Well, I’m not satisfied. Could it be related to the expansion of democracy after World War II? To the rapid changes in society after World War II? There must be explanation. It doesn’t just come out of nothing.
Justice Scalia: You know, it could come out of people. It begins to sweep the Judiciary at least with the Warren Court. We have a Chief Justice that was a governor, a policy maker, who approached the law with that frame of mind. And once you have a leader with that mentality, it’s tempting to follow into the lovely fields that he’s piping us into.
Mr. Hamilton: Katherine, there’s a question right behind you, and then Don Wilsonberger.
Audience Member: The basis for your decision in Lawrence v. Texas was a moral disapproval by the public. Isn’t it an originalist interpretation that moral disapproval by a majority really takes legal precedence over the rights of lesbian and gay Americans to make decisions on healthcare, medical emergencies, children, housing, etcetera. Doesn’t substantive due process cover decisions people make about their own lives?
Justice Scalia: Oh, substantive due process does. I thought I made it clear I don’t believe in substantive due process. The basis of Lawrence, of the Lawrence opinion was that the government has no business making moral decisions regarding sex. I predict that that rational will not survive. Because there are just a whole bunch of laws from the very beginning of the world, that every society I know of has enforced. You can start with bigamy. This is simply a moral disapprobation of sexual activity deeply felt by the society. And it has never been unconstitutional for the society, for the majority, to impose that judgment. Now maybe it should be, but don’t tell me that that’s what the American Constitution has required. It might be a good idea. Persuade your fellow citizens that government should make no moral judgments. It’s simply not our history.
Mr. Hamilton: Don.
Don Wilsonberger: Yes Mr. Justice. Prior to this I was reading the essay you did in a matter of interpretation which is very similar to this. You say in the end, you end on a similar note too, and that is that since the majority of the American people have been converted to the Living Constitution idea, you say this is the end of the Bill of Rights because this is now basically the Bill of Rights can no longer protect us because the majority of the people, you say, would in effect repeal it. Do you really believe that the majority of the American people want to repeal the Bill of Rights?
Justice Scalia: I really do believe that our recent decision which vindicated the right to trial by jury by a five to four vote would have come out the other way, but for the fact that Clarence Thomas and I are originalists. It would have come out the other way because virtually all state legislatures and the federal Congress had approved this notion of allowing the judge to decide that you were carrying a gun you can get another ten years. And that is surely not what the Bill of Rights guarantee of trial by jury means. But some judge can send you up the river for another ten years for the fact that he finds, and finds just by a preponderance of the evidence rather than beyond a reasonable doubt. I stand by what I said. And I think that our cases have vindicated what I said.
Mr. Hamilton: Ralph. And then we’ll go to Steve. I told Justice Scalia we would stop sharply at five o’clock. It’s just a few minutes away, so we’ll have two or three more questions. Ralph, go ahead. Excuse me, David.
David: Justice Scalia, some people date the emergence of Living Constitution from the crisis of 1937 when the Court and the Presidency were at loggerheads over the New Deal that the American people had certainly endorsed in the election of 1936. And the Court, populated by conservatives primarily, shifted a good bit in order to accommodate the New Deal. Some of us tend to identify the emergence of a Living Constitution much earlier. Marbury v. Madison maybe the first case of a Living Constitution, given the lack of detail of the judicial article of the Constitution itself. In a Constitution of less than five-thousand words which has about doubled in length with the twenty-seven Amendments attached to it, is there even the possibility of clear enough guidance for the operation of our government, without judges engaged in at least discussion of what the terms of the original Constitution mean when it comes to dealing with circumstances, with technologies, with possibilities that didn’t even exist in 1789?
Justice Scalia: I’m not talking about applying the Constitution to new phenomenon. That’s not what’s going on. I’m willing to apply the Constitution to new phenomenon. You take it’s original meaning and you say “Well, it covers this, it doesn’t cover that. This thing is somewhere in-between.” You have to figure out where it is. Sure, judges have to do that. I’m not saying originalism gives you an answer to every question. But it gives you an answer to an awful lot of questions, including the most controversial ones: abortion, suicide, homosexual sodomy. Those answers are clear. Whereas, the non-originalists has no answers. Literally, every day is a new day. Every day is a new day. You know, is the death penalty unconstitutional yet, with evolving standards of decency? Now, I don’t agree with you that court packing plan and the Court’s switch on the meaning of the Commerce Clause could be regarded as the beginning of the Living Constitution. That was a one-shot deal, in which a Court that was standing in the way of expansive Presidential powers was steamrolled or coerced, if you believe that that’s what happened. It was not the adoption of a general principle, that everybody agrees that the Court can revise the Constitution periodically so that it’ll be up-to-date. It had nothing to do with that. That’s where we are now. And that’s new. As for Marbury v. Madison, that was, Marbury v. Madison was a virtual plagiarization of Hamilton’s piece in the Federalist Papers. I think it was perfectly in accord with what the Framers intended. But, they intended judges to be acting as judges. That is to say as lawyers, to be dealing with texts.
Mr. Hamilton: We will conclude with Steve Lagerfeld. This will be the last question.
Steve Lagerfeld: There’s a long article in a recent Harvard Law Review, in the Harvard Law Review recently.
Justice Scalia: They’re all long.
Steve Lagerfeld: They’re all too long, I’ll tell you that.
Justice Scalia: Or they all seem long anyway.
Steve Lagerfeld: And it sketches out in great detail the various ways in which different parties in the American political spectrum have asked the Court to intervene in shaping the political process: parties, institutions, elections, there’s Bush v. Gore obviously, but there’s all sorts of other cases where both liberals and conservatives have asked the Court to really take a strong hand in designing parts of the American political process. Again, I think this is something I think you’d say is of very recent vintage. So my question, I guess, is sort of a two-parter. One is, given that, I mean, is there the consensus that many people see among liberals, liberals and conservatives now seem to agree that they want the Court to intervene in all sorts of matters, down to the design of political parties and so on and so forth. Does this consensus exist in your view, number one. Number two, is it symptomatic, if it does, of some sort of basic democratic dysfunction.
Justice Scalia: I don’t think there is a consensus, just because people run to the courts. I mean, people have always been running to the courts. We’ve always been a litigious society, from the very beginning. And, just because one party comes in and wants us to redesign the party, there is usually somebody on the other side who doesn’t want us to redesign the party. That’s what litigation is all about. No, I don’t see any… Look, I’m not saying, you know another one of the terms that I don’t really like, beside “strict constructionist”, the term “judicial activism” can be misused. I don’t mind the courts doing actively what they are supposed to do. And some of these things that you refer to as the courts redesigning institutions, the courts are behaving entirely properly. Needless to say, Bush v. Gore is one case where I thought that was the case. We were not inventing some new right, we were applying an Equal Protection Clause that is there in the Constitution, and we were applying another clause which says that the state legislature has to decide how the presidential electors are selected. Those are clear Constitutional requirements. I don’t mind courts applying them. I’m not urging courts to do nothing. I’m urging them to do what the Constitution says they can do, and not to become grand philosophers, to redesign the Constitution itself.