November 17, 1997
On Interpreting The Constitution
The Honorable Antonin Scalia
Supreme Court Of The United States
CHAIRMAN HERTOG: Good evening. I'm Roger Hertog, Chairman of The Manhattan Institute. My Mother should only be here to hear this. It has been our custom at these events not to have a dais of so to say eminent persons.
But this evening, out of respect for our speaker, let us break somewhat with tradition and extend our welcome to all by adapting an idea from Gary Trudeau.
Justice Scalia, friends, colleagues, honored guests, admirers and skeptics, respected Liberals, muddling Moderates, pushy Libertarians, libertines for that matter, those who are pro-choice, those who are anti-choice, those who choose to waffle, and those who are merely leaning.
Silent majorities, boisterous minorities, vegetarians, flesh eaters, humanitarians, animal
rightists, and animal companions, devolutionists, evolutionists, strict constructionists, and the home constructionists.
Fellow travelers, stay at home Moms, people of color, people of power, pinkos, reds, conservatives of every stripe and hue, welcome to the Eleventh Annual Wriston Dinner.
We honor tonight Walter Wriston, not only as a valued Trustee of the Institute, but as an incisive, visionary purveyor of ideas. If anyone doubts the quality of his contribution one need only to read the most recent issue of Foreign Affairs.
In his essay, Bits, Bites and Diplomacy, Walt brilliantly captures the defining revolution of our time, the marriage of computers and telecommunications. We live, he writes, in the information age, distinguished from all those which have come before.
The pursuit of wealth is now largely the pursuit of information. The new economic powerhouses, he writes, are masters, not of huge material resources, but of ideas and technology.
While the Manhattan Institute is not yet an economic powerhouse we too equate our wealth with the generation of ideas. And I'm pleased to tell you that business is booming. We know it's great because we've made people uncomfortable. We've stirred controversy. And we've disturbed the status quo.
Churchill said, what's the use of having a common language if we do not use it to air our differences? And we air differences so much so that we even receive the grudging respect from some of our intellectual adversaries.
The Nation Magazine said, the City Journal is an uncomparable catalyst of social reform in education, housing, welfare, crime and the quality of City life.
Liberals in New York, they went on to say, fail to grasp the long term impact of conservative investments and policy work. They didn't have Myron Magnet.
We won't show; this isn't show and tell, Myron. You might say we've become rogues in the intellectual arena. And we owe our distinctive hoodlum reputation to the scholarship of our Institute Fellows.
In 1997 our scholars published four major books. George Kelling and Catherine Coles, in Fixing Broken Windows, offered a strategy for reducing the serious crime that is worked in New York and many other cities.
Peter Salens, in Assimilation American Style, wrote passionately why immigration is vital source for preserving our economic and civic strength. Wally Olsen, in The Excuse Factory, exposed the erosion of the workplace by well-intended but ultimately debilitating and self-defeating regulations and laws.
And our newest book, America in Black and White, by Abigail and Stephan Thernstrom, has already been recognized as an important contribution to understanding the history and status of race in America.
In a hotbed of tumultuous ideological debate the Thernstrom's, using cool facts to buttress their optimism, have chronicled what is largely been an ignored story. The broad spectrum of progress of blacks in America over the last fifty years. Wedding argument to data and opinion to research they represent the very best of who we are.
Could I ask our three authors that are with us tonight, the Thernstroms, Peter Salens and Wally Olsen to stand?
But along with our scholars, our Trustees have made the Institute distinguished. And distinctive. And no one better than Richard Gilder.
This year he resigns as Trustee to remain our colleague, friend, supporter, as Chairman Emeritus of the Board. But it is his vision of philanthropy and his commitment to ideas that reaches far beyond the Institute.
Dick knows how to give gifts that last. That are meaningful. Whether it's marshalling the vision and the resources to restore Central Park, funding education for disadvantaged children in public and private schools, reviving the Museum of Natural History, preserving Civil War battlegrounds, and the list goes on.
Dick's generosity is rooted in the passion for which our Republic stands. Life, liberty and the pursuit of happiness. To play on the words of his hero, all of us will highly note and long remember the deeds of our Trustee, Richard Gilder.
Enough about us. I feel the hook coming already. It is now my privilege to introduce Peter Huber, The Senior Fellow at the Manhattan Institute. His accomplishments are so multifaceted that it is difficult to know where to begin.
It is not that he graduated Summa Cum Laude from the Harvard Law School, one amongst two in the last twenty years. It is not that he's an acknowledged expert in telecommunications, cyberspace, tort reform or the use of junk science in the courts.
Note tonight it is most relevant that he's been our scholar, as well as being law clerk to both Saundra Day O'Connor and Ruth Bader Ginsberg. I can think of few more worthy than Peter Huber to introduce our Honored Guest. Peter.
TRUSTEE HUBER: Allow me to begin by quoting from Justice Scalia himself. Words from an opinion he wrote some years ago. "That argument," write Justice Scalia, "is like some ghoul in a late night horror movie that repeatedly sits up in its grave and shuffles abroad after being repeatedly killed and buried. Such a docile and useful monster is worth keeping around, at least in a somnolent state. One never knows when one might need him."
Now a few of his harsher critics use almost exactly the same language to describe Justice Scalia himself. He has been called a Judicial Anachronism. A Lear-like figure, raging on the heath against the world.
But he is described much more often, and more accurately, as formidably persuasive. By turn seductive, fierce, funny, charming, always brilliant. His opinions are renown for their wittily incendiary language.
Observers of the Court describe his writing as principled, clear, consistent, forceful, wry, irreverent, sometimes scathing. But always remarkable for it's clarity of thought.
There is, of course, only one city in the country that could have bred such a unique character. And I need scarcely add that that City is New York. The son of an Italian immigrant who taught Romance Languages at Brooklyn College.
Antonin Scalia grew up in Queens. Was a star pupil at Xavier High. And a whiz kid on New York radio contests. He graduated Georgetown University first in his class. Was Editor of the Harvard Law Review. And married the lovely Marie McCarthy, a Radcliffe graduate, in 1960.
He practiced law and then taught it at Virginia, Georgetown, Chicago, Stanford. He worked in the Justice Department. Was appointed to the D.C. Circuit Court of Appeals. And then in 1986 was appointed by President Reagan to the U.S. Supreme Court.
This is the standard bio but it hardly begins to capture the richness and the texture and the vitality of Justice Scalia's personae, both on and off the Court. Yes, he is a passionate student of Thomas Jefferson. He is also a passionate student of Joe DiMaggio.
His legal prose is indeed uniquely musical. It sings as you read it. We also have it on the reliable authority of another New Yorker that he sings off the Bench too. Justice Ruth Ginsberg has disclosed that our Nine Justices celebrate each others birthdays in the Supreme Court dining room. With a toast and a chorus of Happy Birthday.
And the merriment, I am quoting Justice Ginsberg here, is generally led by Justice Antonin Scalia because he's the only one of us who can carry a tune. Many admirers say much the same thing about his legal writing, of course.
Melody aside, those opinions are energetically argumentative. He plays squash that way too. He drives that way, as all New Yorker's should. Consider this passage in a letter that Justice Harry Blackman received some years ago and read with great delight to a large audience.
The write had recently met Justice Scalia at a seminar in France. And he wrote to Justice Blackman, Your junior Justice was a pleasant colleague, though a madman behind the wheel of a car. A true Italian driver. The French were terrified.
What else defines the quintessential New Yorker? A great love of theater, of course. And Justice Scalia is as theatrically engaging off the Bench as he is on it. He made his debut with the Washington Opera in an opening night performance of Ariadne Auf Noxaus (phonetic) on January 8, 1994.
A devoted member of the Lawyers Committee of the Washington Opera, Justice Scalia had made no secret of his desire to appear as a spear carrier or something in some performance. In Ariadne he in fact appeared in a curled white wig and a filet collar.
A costume previously worn by Placido Domingo for the 1986 debut of Goya. You'll have to be impressed, especially when you consider how very unlikely it is that Placido Domingo will ever get to perform in Justice Scalia's robe.
And I might add that a lawyer and occasional Supreme Court advocate in the audience remarked how pleasantly surprised he was to see Justice Scalia sit still for eighty-five minutes without asking a single question.
Justice Scalia writes many dissents. Sometimes acerbic ones. And when he does he writes with the strength and passion of the great dissenters of the Court's history in the nobel tradition of John Marshall Harlan and Oliver Wendell Holmes.
Justice Scalia writes many more majority opinions. Last term he voted with the Court's majority in four cases out of every five. Slightly more often than Justice Stevens. Slightly less often than Justice Souter.
Whichever side he writes on Justice Scalia's opinions are noted for both their high moral tone and also for their wicked wit. His prose is learned. It is also leavened with self-deprecating humor.
He writes with the voice of a man who truly believes in something. And who will stand for it against any opposition. Like the Spartans at Thermopylae.
In a speech some years ago Justice Scalia offered three rules for lawyers who dare to argue before the Supreme Court. Pronounce his name correctly. Refer to opposing counsel as Dear Friend. And sit down quickly.
Well, it is perhaps possible to speak briefly to my Dear Friend, Justice Scalia. But as you see it is not easy to speak briefly of him. He is a jurist who's intellect and convictions are a large, robust, resolute, rich, challenging and generous as the City that raised him.
Constitutional scholar. Poker player. Father of nine. Justice Scalia is living proof that the law does not always have to be dull. It is a great honor for The Manhattan Institute to welcome home tonight our fellow New Yorker, the Hundred and Third Justice of the United States Supreme Court, the indefatigable, the irrepressible, the inimitable, and of course the Honorable Antonin Scalia.
JUSTICE SCALIA: Thank you very much. Please be seated. Thank you. Thank you very much. Wow. Thank you very much, Peter. Officers, Trustees and friends of The Manhattan Institute, ladies and gentlemen, it's always bad to get as good an introduction as that. For two reasons.
Number one, it's hard for the speech to be as good as the introduction. And number two, the secret of success in life is that other people should have low expectations of you.
Peter and I see one another, I remarked to him this evening, once a year. We gather every year at New Year's Eve for a New Year's Eve party. And we always see one another in black tie, because it is a black tie party, at Justice Ginsberg's.
Ruth mentored Peter. He was her law clerk, I don't know, quite some time ago by now I suppose. I was going to introduce my remarks tonight with a reference to the story about the fox and the hedgehog. And I had not learned until tonight who popularized this story. I gather it's Isiah Berlin.
But the burden of this story is that the fox knows many things. And the hedgehog knows only one thing. But it is a big thing. I am the hedgehog. What I want to talk to you tonight about is what I will bend anybody's ear about, what I go to law schools to talk about, what I speak to any assembly of intelligent people from high school age onward about, and that is what in the world we think we're doing when we interpret The Constitution of the United States.
It is amazing that that should be a question after we've been doing this for over two hundred years. But it is a question, not only among the Justices of the Supreme Court. Not only among lawyers. But also among the American people.
Once upon a time The Constitution was regarded by all Americans as containing two characteristics. Number one, it contained a limited number of guarantees.
They were set forth, a few of the personal guarantees, in the text of the document. Most of the personal guarantees in the Bill of Rights.
And there they were. They were recited. But it was a closed set.
Number two, those guarantees that were contained in The Constitution did not change. The Constitution was that rock to which the society was anchored and which it could always rely upon. It did not change.
That view of The Constitution is a thing of the past. Among Judges, among lawyers, and worst of all, among the American people. The new view of The Constitution is encapsulated in the hateful phrase, the Living Constitution.
It is a document that morphs from decade to decade so as to be the embodiment of the most profoundly held beliefs of society. From decade to decade. Never mind what beliefs it recites in its text. Never mind what beliefs the people who wrote that text happened to have. What it consists of now is an empty bottle which we feel free to fill up with whatever liquid seems to us passionately desirable.
How deeply into the society this attitude has sunk was brought home forcefully to me some years ago when I spoke; I agreed to speak to a group of high school students who were in Washington for, I had been advised, a contest on The Constitution.
And it seemed to me a wonderful thing. I mean, you know, getting high school students to learn about The Constitution. So I went and I was told beforehand what the contest consisted of.
As it turned out, each high school was divided into teams. There was a First Amendment team. A Fourth Amendment team. A Fifth Amendment team. A Sixth Amendment team. You win the contest if your team could devise the most novel right that had never been thought of before under the First Amendment, the Fourth Amendment, The Fifth; I mean, that's (interposing)
I have not made this up. This is not a joke. This; as far as I know this contest still continues today. But that is the notion that the people now have of this document. That it is simply a means of extending our most deeply held beliefs. And if something is not there in the text don't worry about it. We will find it in there somehow or other.
Now, you should not think that the American people came to this novel approach all by themselves. I confess that it began with lawyers. And judges. The jurisprudence of my Court, particularly in the field of the Eighth Amendment, expresses this vision of The Constitution very clearly.
Our Eighth Amendment cases; the Eighth Amendment consists principally of the cruel and unusual punishments clause. The Eighth Amendment cases say that what constitutes cruel and unusual punishment changes from age to age.
To comport with, and I quote, "The evolving standards of decency that reflect a maturing society." Let me say that again. What constitutes cruel and unusual punishment changes to comport with the evolving standards of decency and reflect that reflect a maturing society.
Isn't that wonderful? Every day in every way we get better and better. Now, I suggest to you that the people who wrote the cruel and unusual punishments clause, who thought it was necessary to put such a guarantee into The Constitution, which could not be changed except by the cumbersome process of Constitutional Amendment, were not such Pollyanish people.
They did not believe that every day in every way we get better and better. And they did believe that a society could not only mature, it could also rot. Hence, they adopted the Eighth Amendment.
But never mind, the Eighth Amendment; and although we haven't said it as clearly in other fields, the other amendments as well, have now been interpreted by the Courts to change from age to age.
I have sat with three colleagues, they're all retired now but nonetheless with three. Who thought that the death penalty was unconstitutional. The death penalty not only was in widespread use at the time the Eighth Amendment was adopted, indeed, you know, it was the penalty for all felonies.
That was the very definition of a felony. That's why you hung horse thieves. Horse thieving was a felony. They did not have correctional institutions. They had gallows.
Nonetheless, despite the fact that it was a common penalty at the time, and beyond that despite the fact that it is mentioned in The Constitution. You are all familiar with at least one of the places it's mentioned. No person shall be deprived of life, liberty or property without do process of law.
What do you think they're talking about? And, of course, another provision of The Constitution guarantees the right to a Grand Jury indictment in all capitol cases. What do you think they're talking about? The death penalty.
Nonetheless, despite the text, despite the practice at the time, we live in an age in which the understanding of The Constitution is such that three Justices of the Supreme Court could believe that the death penalty is unconstitutional. Because that was then and this is now. And we have evolved and The Constitution changes.
I do not bemoan the fact, or I am hopeful that one can overcome the fact that judges and lawyers talk like this and believe like this. But what is really profoundly upsetting is that the American people talk and believe like this and believe ardently in the Living Constitution.
The argument is something like this. The Constitution, after all, is two hundred years old. That's very old. It is an organic document. It needs room to grow and develop with the society that it governs. And if it could no grow and develop it would become brittle and snap.
The anthropomorphic view of The Constitution. It's like your stock broker who tells you that the market is resting for an assault on the seven thousand level again. It's waiting there at the base camp. We have a Constitution like that.
I ask you to consider, do the people who want to bring us a Living Constitution want to bring us flexibility? My Constitution is flexible. My Constitution, which is; I will accept the condemnation, which is a minimalist Constitution. It means what it meant when it was written.
But it is a flexible Constitution. In my Constitution you want the death penalty, pass a law. You don't want the death penalty, pass a law the other way. How more flexible could you be?
You want a right to an abortion? Adopt it the way most rights are adopted in a free society, pass a law. You don't want a right to an abortion? Pass a law the other way. You want a right to die? And so forth, right down the list of all of the social issues that are brought to the Supreme Court. No, no, no, no, no. A constitution is not for flexibility. A constitution is for rigidity.
And those people how would insert one after another new right into the document are not eager to bring us flexibility. They are eager to have us do it their way from Coast to Coast without the possibility of democratic change.
Now that you're clapping let me tell you that this is not an affliction that is exclusive to the left. Conservatives are quite as willing to use The Constitution to rigidify their views as liberals are. The original activist courts were the courts of the 1920's which struck down all sorts of social legislation on the basis of The Constitution.
And conservatives today will be quite willing to use The Constitution for their ends. I give you an example from my Court's decisions of a couple of terms ago.
On what I believe was the very same day we came down with two decisions, one of which was the Rohmer case, which struck down a Constitutional Amendment that was adopted by plebescite by the People of Colorado which said that neither the State nor any of the political subdivisions of the State would add homosexuality to one of the bases on which individuals cannot discriminate.
In other words, it would not be made, you know, religion, race, sex. Thou shalt not add homosexuality, that's what the Constitutional Amendment said. My Court struck it down as unconstitutional under, I don't know, the Homosexuality Clause of the Bill of Rights. Or whatever it is.
I have searched the document and I do not find it there. But on the same day, on the same day we decided the BMW case. This is the case involving the famous automobile that is advertised as having a finish which has been baked eight times in Bavarian ovens, or whatever.
Sometimes these cars, on the way across the sea, get scratched. And they do not send them back to Bavaria to be baked eight times in Bavarian ovens. Pfssst. Yes, they spray paint them is what happens.
And one of the purchasers of these cars discovered that that had been done to his Beemer and brought a lawsuit in State Court and recovered, I don't even remember, it was something; thirty-five mil; I mean, pick a number. Some crazy amount of money. In punitive damages because somebody had spray painted his Beemer instead of baking it.
It was an incredible amount of money. Outrageous amount of money. And my Court said, that's unconstitutional under, I don't know, the Excessive Damages Clause of the Bill of Rights, or something like that.
And the conservatives loved it. They applauded it. They thought it was wonderful. And the liberals hated it. A pox on both their houses. The fact is that The Constitution says nothing about these subjects.
Due process of law never meant you've got the right answer. It meant the process was fair. A jury could come in with an incorrect verdict. It doesn't violate The Constitution. It can come in with excessive damages. It doesn't violate the Constitution.
Nonetheless, that is what we held. And it was fascinating that both sides were willing to condemn the Court depending on what the issue was. If it was a matter of enshrining in The Constitution their own values, wonderful. But if the other team was trying to do that, that was a horrible thing.
It is really a very difficult thing to do to come to terms with the fact that The Constitution does not contain all of those things that you love and consider important. Neither those things that liberals love and consider important nor those things that conservatives love and consider important.
It contains what is says. And that is not everything. If you go down the Bill of Rights, for example, not every important right is in there. And some of the ones that are there are not very important at all.
I mean, you are all entitled, under The Constitution, to trial by jury in all civil matters at common law involving more than twenty dollars. Do you care about that?
Yet there is; you heard I have nine children. There is nothing in the Bill of Rights which says that I may raise my children as I wish. Teach them the principles that I consider important and not the principles that Big Brother considers important. There's nothing in there about it.
And since there isn't I do not feel authorized to enforce such a prescription from the Bench. Even though I will be the first one on the barricades if Big Brother tried to do that.
But there's a difference between believing in it and believing that it's contained in The Constitution. What was included in the Bill of Rights was included there not necessarily because it was terribly important. But because it was a personal liberty that a tyrannical government was likely to move against.
And if you go down the list of guarantees you can see clearly that that's how they were devised. What do tyrants move against? Freedom of religion, freedom of speech. Taking away the peoples' arms. Quartering troops in homes, unreasonable searches and seizures.
That's how the list was compiled. They are not; they are all very important but they are not the most important things in the world. That was not the point.
All the rest of it, even very important things like whether there's a right to die, whether there's a right to an abortion, whether I have a right to raise my kids the way I want, all of those other things were left to the democratic process.
And that, after all, was the innovation of 1789. It was not the Bill of Rights. The Bill of Rights was a small exception to the innovation of 1789. Which was democratic self government.
That an intelligent society should debate these issues, even these important issues. Persuade one another and govern themselves. That was what 1789 was about. The Bill of Rights was a very small exception. Just a few things we will take out of this democratic process and guarantee absolutely, unless you can amend The Constitution. A very few things.
Every time you add something to that list you diminish democracy. Whether it's something added on behalf of liberals or on behalf of conservatives. Abortion is a perfect example. It is no use debating abortion.
It is out of the democratic realm. We do not debate it anymore. It is no longer a political question. You can't, because The Constitution has decided it.
One issue after another can and will be given that treatment unless the society comes back to believing the way it used to believe. That The Constitution contains a limited number of guarantees and that those guarantees mean today what they meant when they were adopted.
How far we have come from that mentality is perhaps best exemplified by calling to mind the Nineteenth Amendment, adopted not that long ago. 1920. That was the Amendment that guaranteed women the right to vote.
Why did we adopt the Nineteenth Amendment in 1920? Can you imagine an American society that would adopt a Constitutional Amendment for that? We had an equal protection clause in 1920. And in the abstract what could possibly be a greater denial of equal protection in the abstract than denial of the franchise?
And yet the Americans of 1920 did not think that the solution for this was to come to the Supreme Court and say we have been denied equal protection. Although you know that is the way it would play today. You know for sure that that is the way it would play today.
But that was unthinkable in 1920. Because the Americans of 1920 said we have a Constitution that was; it's a text like any other legal text. And it means what it meant when it was adopted. Now does equal protection of the laws mean that you can't be denied the right to vote?
Well it certainly did not when it was adopted. You could deny the franchise on many grounds. Not only on the basis of sex. On the basis of property ownership. On the basis of literacy. It was simply not a violation of the equal protection clause when it was adopted.
And therefore it is not a violation of the equal protection clause today. And if we feel differently about it let us adopt a Constitutional Amendment. How wonderful. How democratic. But you know that would not happen in our country today.
The groups that wanted that particular revision of the social order would get that revision by obtaining the votes of five out of nine lawyers on the Supreme Court. That is a great sadness.
There are a number of things wrong with our new vision of The Constitution. First and foremost, because this is always first and foremost, is principle. If The Constitution is just this empty bottle, if it means whatever we want it to mean and we can pour in all of these new rights under the equal protection clause, the due process clause, it doesn't matter, we'll find it there somewhere.
Why should my Court be the last word on the meaning of The Constitution? The only rea; you know, the Constitutions of many countries who have imitated us after World War II say that the supreme interpreter of The Constitution shall be the Constitutional Court. Our Constitution does not say that. Isn't that curious?
And my Court feels empowered to strike down a solemn Act of Congress only because its lawyers work. That's what Marbury v. Madison essentially says. Look, we can't help it. You know, we get into this constitutional business by accident.
We have this statute and one side says it's a valid statute. The other side says it looks like a statute but it really isn't because it contradicts the Supreme Law. We can't help it. We're just doing lawyers work, interpreting statutes. The big statute, The Constitution, and the little statute.
Now if it's not lawyers work, if it's philosophers work. If it's social scientists work. If it's politicians work. Then Marbury v. Madison is wrong. So if you have that vision of a constitution we're doing all of this in the wrong forum.
We should have a Constitution like the English Constitution, the last word on which is the Parliament. Unless you believe that it's a text that had a meaning when it was adopted which can be discerned by good lawyers, Marbury v. Madison is wrong.
The second thing wrong with this new theory is that it leaves the Judge no criterion on the basis of which to judge. I have described for you my
criterion for the meaning of The Constitution, which
is what does the text say and what did that language; what was that language understood to mean when it was adopted? This is called originalism.
Now you're free to reject that theory. Fine. You are not originalists. But it's not enough to be a non-originalist if you're a Judge. You have to be a something else ist. You have to have some other theory of your own. If you're not looking to the original meaning of the language what are you looking to?
And I have asked law professors and judges who don't believe in originalism time after time, give me your criterion. There isn't any. It's the only game in town. You either take the original meaning, as it was understood then, or there is no criterion by which the judge may judge. Except his own prejudices.
I mean, how do you think if you do not use the text of The Constitution and its original understanding. How do you think the Supreme Court will decide a case such as whether there is a right to die? Or whether the right to an abortion has been infringed.
Our current law on the latter subject says that the Constitution is violated if a State places an undue burden on the woman's right to an abortion. I'm a lawyer. When I get that next case I'm going to say gee, I'll run to some law book to see what's an undue burden.
But I run across to the United States people. It turns out any burden was not an undue burden. It was totally proscribable. So where do I get my answer as a Judge? Imagine what the conference must be like when that next case comes up.
Does this statute, let's say it's parental notification or who knows what, whatever. Does this place an undue burden on a woman's right to an abortion? I don't know, what do you think?
Do you think it places an undue burden? How about you? Think it's an undue burden? How many think it places an undue burden? That's five. This is not law. This is not law but policy-making.
And once again, just to show that this is a, you know, an equal opportunity fallacy, do not think that the anti-abortion people are not willing to use The Constitution the same way. I mean, I've spoken to people who say that The Constitution not only does not require the States to permit abortion, it requires the States to prohibit abortion.
And I read my Constitution, my Bill of Rights, I can't find anything in there about it. It says nothing about it. I mean, there is a due process clause in the Fourteenth Amendment. If you want to, you know, due process guarantees process and nothing more.
But the anti-abortions say well nor shall any State deprive any person of life, liberty or property without due process of law. And the fetus is a person and therefore it's covered. The only thing is the very next sentence; you see, I'm a lawyer so I do read the next sentence. I mean, talking about a text here.
The next sentence of the Fourteenth Amendment says representatives shall be apportioned among the several States according to their respective numbers counting the whole number of persons in each State. You think they were counting fetuses?
I don't think so. So reading it as a lawyer I think The Constitution says nothing either way on it. And we should stop trying to resolve profound social questions by fighting them out on the Supreme Court and having the Supreme Court make essentially policy judgements.
I am not sure what lies at the end of the road. What you must realize is that we have not been on this road for very long. You know, I mentioned the Nineteenth Amendment. 1920, it's not that long ago.
I am now something of a dodo bird among jurists and legal scholars. You can fire a cannon in the faculty lounge of any major law school in the country and not strike and originalist.
But this is new. This is new. It used to be that everybody was an originalist. At least in expression. They said The Constitution is unchanging. I'm not sure where the road leads to. Do not think that we have lasted two hundred years going down this road.
To my mind what it eventually leads to is I do not think the tyranny of the Supreme Court. I think it will lead in another direction. And you've seen the developments already in the confirmation process.
A Supreme Court which, by the theory it is using, is necessarily making social judgements without the basis of any legal text, will become a political institution. It will be subject to the political pressures that political institutions are, and rightly are subject to.
So that when people get nominated to the Supreme Court it will not be enough to ask whether they're good lawyers. Whether they have good judgement. Whether they can read a text. Whether they can be dispassionate.
No, what we will ask is whether they agree with us as to what new values will be poured into The Constitution. Do they believe in the right to die? Or a right to an abortion?
I think it's inevitable that if the Court does not behave like lawyers it will be held to the standard of politicians. Politics is not bad in America. Now I would rather be governed by a Supreme Court if it is making these social judgements, that is politically selected, than I would be guided by a Supreme Court that is selected on the basis of lawyerly merit. Because lawyerly merit has nothing to do with these profound social questions that I have been discussing.
Well, that's not a very happy prospect. And the only way to avoid it is to put aside these notions of the Living Constitution. Whether it's living in the direction you like or in living in some other direction, it's a bad idea.
Come along with me and admire the Dead Constitution. I have to get a new term for it. That one; maybe the Enduring Constitution. That's a little better. Packaging is everything.
It is less cosmic. It does not do all those wonderful things that maybe you think a Constitution should do. But it happens to be the way that a democracy ought to govern itself. Thank you.
TRUSTEE HUBER: I think we'd like to have some time for a few questions so I would urge you to make them brief and to the point. I'll try to acknowledge you from the floor. Chuck Brunie.
MR. BRUNIE: Is there a chance that the (talking away from microphone)
JUSTICE SCALIA: No, I don't know. The question is whether judicial activism came along with inflation. It's a sort of a Marxist (pause). I am shocked. Shocked and dismayed that in this gathering, ha, ha, ha; I don't; I would like to; I would put it a different way.
I think it's a consequence of the instant gratification society. It is a quick way to get things done. All you have to do is get five Justices of the Supreme Court to agree with your most profoundly held belief and that becomes Constitutional Law. It's the easy way to do it. Persuading the people in each of the Fifty States is a lot harder.
TRUSTEE HUBER: Stanley Goldstein.
MR. GOLDSTEIN: Why is it so unreasonable to say that (talking away from microphone)
JUSTICE SCALIA: Make a change. Pass a law. Nothing stops you from passing a law. The question is whether The Constitution prohibits you from imposing the old penalty. If you acknowledge that what is cruel and unusual can alter in one direction, you know, more tender hearted, why can't it alter in the other direction, more cruel?
You know, we used to think thumbscrews were bad but the more I think about it, you know, they're (interposing)
Is it possible that it only alters in one direction? And what's the use of adopting a provision like that in that case? I mean, these people weren't enamored of, you know, just the words cruel and unusual.
They had something concrete in mind that they did not want to be allowed. And it seems to me you can't let that meaning change. To impress upon you how minimalist The Constitution this leads you to. It is hard medicine.
It means that you would have to say it is not unconstitutional for a State to notch the ears of felons. Because that's what they used to do in 1791. In a way it was handy. You could always tell a felon. But you would; I think that's, you know, that's an outrageous punishment today. I think it's outrageous. You think it's outrageous. I don't think it's unconstitutional.
I'm not worried about anybody adop; I mean, the more outrageous the example you give me the less worried I am that it will ever happen. But the point is The Constitution just sets a floor.
And unless you're willing to accept that, and it's a hard thing to accept, you're into all the rest of it. You can't have it both ways.
TRUSTEE HUBER: Norman Podhoretz.
MR. PODHORETZ: (talking away from microphone)
JUSTICE SCALIA: How do I reconcile my criticism of Marbury v. Madison where the decision to strike down the religious freedom restoration; I didn't criticize Marbury v. Madison. I think Marbury v. Madison was correctly decided because I think that interpreting The Constitution is lawyers work.
The point I was making is that if you don't think it's lawyers work, if you think it's philosophers work, if you think it doesn't matter what it says or what it used to mean, then it's not lawyers work and Marbury was wrong. I think it's right. So then I don't have to worry about Rifer (phonetic), right?
MALE VOICE: What do you think about (talking away from microphone)
JUSTICE SCALIA: I think what is it taking now is exactly what was it taking then. I think the word taking is probably a strange word to apply to most social regulations. Such as rent control. Such as zoning.
I mean, you can dislike those features of modern society but it seems to me the burden is upon you to persuade your fellow citizens that they are a bad idea. Because I don't see anything in the text that enables you to bring them under constitutional prohibition.
TRUSTEE HUBER: (unknown name)
MALE VOICE: Justice Scalia, are you making a distinction between Federal Law and State and Local law (talking away from microphone)
JUSTICE SCALIA: That was Prince. Prince, not Lopez. Lopez was the commerce clause.
MALE VOICE: My point is, is there not; when you go down those Bill of Rights and suggest that if it's not explicitly stated there then we don't have a right to it, like the right to raise your children as you choose, is that not (talking away from microphone) if that's not true what is the Tenth Amendment there for?
JUSTICE SCALIA: I'm not sure I understand the question. The Tenth Amendment doesn't have anything to do with individual rights. It has to do with the powers of the States versus the powers of the Federal Government.
MALE VOICE: The point is the Federal Government doesn't have (interposing)
JUSTICE SCALIA: Maybe it's the Ninth Amendment you're (pause)
MALE VOICE: No, I'm talking about the power; the legitimacy of the Federal Government to undertake actions to say control how your children are raised.
I would suggest the Federal Government does not have that power because that power is not enumerated in The Constitution. And that's why the framers (talking away from microphone)
JUSTICE SCALIA: Okay. I mean, yes. I mean, another reason why some things can't be done by the Federal Government is that there is no proper Federal power.
But I suppose the Federal Government could fund, under its power; its welfare power, could fund Federal schools. And prescribe the programs for Federal schools. And then say you must go to Federal schools.
MALE VOICE: (talking away from microphone)
JUSTICE SCALIA: Yes, and that's water over the dam. You're not; you're much more ambitious than I am. Incidentally, when I've been talking about original I should have made this clear.
We have been proceeding on this non-originalist track for quite some time now. It includes a lot of stuff. For example, it's clear that the Bill of Rights, the whole Bill of Rights, was meant as a limitation only on the Federal Government.
We have applied the Bill of Rights against the States through the Fourteenth Amendment, which says no person shall be deprived of life, liberty or property without due process of law. Which is just a procedural guarantee.
But my Court has said it sucks up some substantive guarantees. I don't know, it's (pause); I don't know how to describe it. It just doesn't make any sense. I think that's wrong.
I don't think that that's what the original meaning of the Fourteenth Amendment was. But I'm not going to go back and; it's water over the dam. I do feel bound by Starry Decisis (phonetic) for; I'm not going to say that freedom of religion does not have to be under; Federal freedom of religion does not have to be observed by the States.
You're worried about Rifer? I mean, if you took an originalist view it's none of the Federal government's business. It's a matter guaranteed by State Constitutions. But the religion clause did not apply against the States.
Originally it clearly didn't. You know, the way it was originally framed is not that the States shall not establish a church but that Congress shall make no law respecting an establishment of religion.
That is, Congress will neither establish nor disestablish religion.
And it's hard to believe that the Fourteenth Amendment, by saying due process of law, suddenly sucked that over against the States. It's only since the middle of this Century that we've had any religion clause cases against the States.
You wonder why, you know, why these cases about menorahs and creches and, you know, we never had them because the States were not, until the middle of this Century, bound by those clauses.
Now, am I going to rip all that up? I'm not going to rip all that up. It's water over the dam. The people have gotten used to it. You know, that's what Starry Decisis is all about.
In other words, I am an originalist. I am a texturalist. I am not a nut. And you've got to be (interposing)
And you've got to be a nut to try, you know, to rip the whole thing apart. You can't go back that far. And that includes the welfare clause. Welfare spending clause. There are some provisions, such as the abortion cases, that I cannot accept because I can't deal with them as a lawyer.
I don't know what to do when the next abortion case comes up. I can't deal with it as a lawyer. I can deal with the First Amendment as applied to the States. I just do the same thing that I would do to the Federal Government.
It's workable. Things that are workable I'll accept, by and large. Yes?
MALE VOICE: (talking away from microphone)
JUSTICE SCALIA: I have no policy views.
I'm a lawyer. When I; when you take the oath of judicial office you become a policy eunuch. I neither like policies nor dislike them. I just read them and enforce them. Sometimes biting my tongue.
MALE VOICE: One question. You say you're not a nut. (interposing)
But you're certainly a contrary. Everybody in this room, I think, or just about everybody, next to Alan Greenspan, would hold that you and the Supreme Court are the Holiest of the Holy. And now you're telling us you're just a bunch of lawyers.
Yes, you have good judgement. But we shouldn't expect of you as much as we do. And this has been building up for so many years it must be that if all the world, and especially everyone in this country, thinks so much of the Supreme Court, and vests you with so much responsibility, that inevitably you have to take that responsibility that somehow we've given you.
So we can't give you less but perhaps; how do we make sure that you (talking away from microphone)
JUSTICE SCALIA: Well, you don't give me things by loving me. You give me things through the democratic process. I read the Constitution. That is how the American people give me whatever power I have.
And if it's not conferred to that document I don't have it.
And you also underestimate, I think, the glory of being a lawyer. I say I'm just a lawyer. But I'm being falsely modest. Lawyers deal with process. And what I've been talking about mostly tonight is following the process of The Constitution.
It's picky, picky. Yes. Just because The Constitution doesn't say anything about it you have it in your power to do these good things. But you won't do it. Just because The Constitution doesn't say anything about it. Picky, picky.
Fidelity to process is the essence of law. Especially in the democratic process. In a democratic society. If you are not faithful to process the whole thing comes apart.
Lawyers are about process. They won't give you the right result in a criminal trial. They'll just make sure all the processes are right. And we do the same thing at the Supreme Court.
We do not give you good laws. But we make sure those laws are written properly. That they conform to The Constitution. And that they are interpreted faithfully according to what they mean.
That's not everything, but it's a whole lot. And I certainly don't share the view that it's not worth a candle.
TRUSTEE HUBER: Before we leave tonight, the Manhattan Institute does have something we would like to give to Justice Scalia through the generosity of one of our Trustees, Bob Rosenkranz. So I'd like to invite Bob up to give the presentation.
TRUSTEE ROSENKRANZ: Well thank you very much. I heard the Justice speak in Washington about four years ago and ever since I've had it as an ambition of mine as a Trustee of the Manhattan Institute to see him deliver this lecture today. And it's a pleasure to see that ambition fulfilled.
In order to commemorate this occasion I have a gift on my behalf, and on behalf of the other Trustees, which I think is entirely fitting. Which is; this is an edition of The Constitution that was published for the Bicentennial.
It's a privately printed edition. Perhaps the most beautiful physical embodiment of The Constitution I think ever made. It was Orion Press and an edition of five hundred. And I can't think of anybody that deserves this more than you do.
JUSTICE SCALIA: Thank you. Thank you very much. Thank you all and good evening.