Posted: 3/14/2001 12:10:37 AM EDT
Scalia slams 'living' document philosophy
Justice draws overflow crowd, protesters at Marquette
By TOM KERTSCHER
of the Journal Sentinel staff
Last Updated: March 13, 2001
The Constitution is an enduring document but not a "living" one, and its meaning must be protected and not repeatedly altered to suit the whims of society, U.S. Supreme Court Justice Antonin Scalia said in Milwaukee on Tuesday.
Scalia, often reviled as an arch-conservative who would do the nation harm, admitted to a respectful crowd of more than 1,000 people at Marquette University that his "originalist" judicial philosophy is not popular.
In contrast, the idea of a "living Constitution" in which the meaning can be interpreted as society changes is "seductive," he said.
But Scalia also insisted that only his approach - interpreting the Constitution based on the Framers' precise words and the meaning they intended at the time - can preserve the Constitution's guiding principles.
"The Constitution is not an organism," the justice said, "it is a legal document."
Scalia spoke to 500 people inside Weasler Auditorium and to more than 500 more in an adjacent building in the first appearance of a U.S. Supreme Court justice on Marquette's campus in more than 33 years. Chief Justice William Rehnquist, a Shorewood native, spoke at a Marquette commencement off campus in 1988.
Reagan appointee Scalia, who was appointed to the high court by President Reagan in 1987, is widely regarded as possessing a surpassing intellect and as being an articulate voice for political conservatism on the court. Although there were no disruptions inside the auditorium, outside more than 100 protesters espousing liberal views chanted anti-Scalia slogans before his 5 p.m. speech.
Scalia, however, sought to distinguish himself as sitting not on one end of the political spectrum, but as a judge who utilizes a philosophy that seeks to preserve the original meaning of the Constitution. Judges who don't adopt an originalist or "textualist" approach, he said, have no judicial philosophy and issue rulings based on the majority view of society at a given time.
That "living Constitution" approach, Scalia observed, has led to U.S. Senate hearings in which candidates for federal judge or Supreme Court justice are grilled about which rights they believe are in the Constitution. Eventually, voters will choose and demand judges based not on their ability to interpret the Constitution but on the political positions they hold, he warned.
"The horrible consequence of that, you understand, is that it places the meaning of the Bill of Rights in the hands of the very entity against which the Bill of Rights was meant to protect you against, that being the majority," Scalia said.
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The protesters bashed Scalia for his votes against affirmative action and abortion rights. They also railed against his vote to stop the manual recount of votes in Florida, which ultimately led to President Bush's election victory over former Vice President Al Gore.
"He's against civil rights, he's against women's rights, he's against the voters in Florida," said Brian Verdin, 48, of Milwaukee, who wore a skeleton mask and held a sign that read, "Scalia is scary."
During a half-hour question-and-answer session that followed his half-hour speech, Scalia dismissed one questioner who asked why the Supreme Court decided to hear the voting case, saying the high court generally takes important cases. But Scalia was also glib, joking that with backers of the "living Constitution," "I am left to defend the 'dead' Constitution."
Scalia's clear aim, however, was to get his audience to care about how judges interpret the Constitution. "Originalists" such as him, he said, are in the minority throughout the legal system.
Scalia began by saying that an originalist or a textualist takes meaning from the Constitution "from its text, and that meaning does not change." The text itself is augmented only by examining what the Framers of the Constitution intended at the time - not by what a majority in society might prefer today, he said.
Scalia said that by adopting this judicial philosophy, he is often treated as if he were "eating little babies." But the originalist approach in fact is orthodox, widely held by jurists throughout most of the nation's history, he said.
Change under Warren Only in the past 40 or so years, beginning probably with the ascendancy of former Supreme Court Justice Earl Warren, did judges see the Constitution as an evolutionary document that could be interpreted differently with the passage of time, Scalia said.
Scalia said he understood why judges, and much of the public, would support the living Constitution" because with such an approach, the Constitution can say anything you want it to. But this nation was not built on the principle that judges, attempting to gauge the will of society, would interpret the Constitution differently as time goes by, he said.
The Constitution, Scalia declared, must remain static, but that does not mean that laws cannot change to reflect changes in society.
The answer for advocates of, for example, abortion rights or the death penalty is to garner enough support from the public and pass laws - not have Supreme Court justices and judges continually revising their views of the Constitution in order to satisfy society, Scalia said.
"That's flexibility," he said. "What the proponents of the 'living Constitution' want to bring you assuredly is not flexibility; it is rigidity."
The protesters, who were kept off Marquette property, said they believed they made an impact on public opinion. One of them, Milwaukee attorney Art Heitzer, said, "People are really scared of this court - what it's doing and what it might do."
Journal Sentinel staff writer Nahal Toosi contributed to this report.
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"The text itself is augmented only by examining what the Framers of the Constitution intended at the time - not by what a majority in society might prefer today," he said.
Outstanding, that's why he's making the "big bucks."
"Reagan appointee Scalia, who was appointed to the high court by President Reagan.... "
"...the very entity against which the Bill of Rights was meant to protect you against...."
What? Is this courtesy of the Department of Redundancy Department?
"Change under Warren Only in the past 40 or so years, beginning probably with the ascendancy of former Supreme Court Justice Earl Warren, did judges see the Constitution as an evolutionary document that could be interpreted differently with the passage of time, Scalia said."
What the hell was [i]that[/i]??
SOMEBODY needs to take another english composition class.