Reading Room

SUPREME COURT ASSOCIATE JUSTICE ANTONIN SCALIA DELIVERS REMARKS AT THE WOODROW WILSON CENTER FOR SCHOLARS ON CONSTITUTIONAL INTERPRETATION

March 14, 2005

Thank you very much, Mr. Hamilton.

It's a pizzazzie 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're younger than 18, and the other person attacked the opinion on the ground that a jury should be able to decide that a person, despite the fact that he was under 18, 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's essentially what I'm addressing today.

I am one of a small number of judges -- a 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, and 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's some kind of weird affliction that seizes some people. You know, when did you first start eating human flesh or something.

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 that 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 always remember it is a Constitution we are expounding, and since it's a Constitution, he said, 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's a Constitution that changes, you wouldn't have to give it an expansive meaning. You could give it whatever meaning you want, and when future necessity arises, you simply change the meaning.

But anyway, that is no longer the orthodoxy.

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 that 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 the way the American people thought in 1920.

In 1920, they looked at the equal protection clause, and they said, "What does it mean?" Well, it clearly doesn't mean that you cannot 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 was 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.

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 thus 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 schoolchildren have come to learn that 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," and worse.

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 that 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 could or a government could not impose any restrictions upon speech. Libel laws, for example, were clearly constitutional. Nobody thought that 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, 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 to -- it's one thing for a state to amend its libel law and say, "Well, you know, we think public figures shouldn't be able to sue." That's fine.

But the court just said, "No, the First Amendment -- which never meant this before -- now means that if you are a public figure, you can't sue for libel, unless it is intentional, malicious."

So that's one way to do it.

Another example is the Constitution guarantees the right to be represented by counsel. It never meant that 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 of 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, inasmuch as it is 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's a very attractive philosophy, and it's hard to talk people out of it, the notion that the Constitution grows.

The major argument is that, look, 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 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 1,100 level. You see 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 off stage. It's off the democratic stage. There's not use debating it. It is unconstitutional -- I mean, prohibiting it is unconstitutional. No use debating it any more.

Now and forever, coast to coast, until -- 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.

I mean, 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.