Scalia, 72, who grew up in New York, typifies the high court's core conservative philosophy of “constitutional originalism” - a strict interpretation of that document as opposed to a “living Constitution” that is constantly evolving. His remarks drew applause and laughter from audience members in a packed University Theatre. The speech marked the 10th installment of UM's Jones-Tamm Judicial Lecture Series, and is the fifth appearance by a U.S. Supreme Court justice on the Missoula campus in a decade.
In his afternoon speech, as well as during an earlier question-and-answer session with UM School of Law students, the jurist trained his focus on a favorite subject - constitutional interpretation, and its controversy within the Supreme Court.
Scalia rejected the notion of a “living Constitution” and demurred at judicial decisions being tailored to meet an “evolving standard of decency.”
The Constitution, he said, must remain static, while responsible judicial interpretation of the legal ballast should consider “what the people thought at the time.”
“The disagreement, believe it or not, has nothing to do with politics, whether you're Republicans or Democrats; it really doesn't even have much to do with whether you're conservative or liberal,” Scalia said. “The fault line in constitutional interpretation is between those who think that the Constitution is static - it does not change, it means today what it meant when the people adopted it - and those who think that the Constitution changes from generation to generation, and it is the job of the Supreme Court to announce the changes, to say when old rights have gone out of existence and new ones have come into existence.”
Scalia told an audience of about 600 people, including members of Montana's state and federal judiciary, that the Constitution should not change with the whims of each successive court. Instead, justices should apply a strict interpretation of the Constitution, he said, providing the only sure criterion to prevent judges “from doing whatever suits them.”
“A Constitution is not a living organism, for Pete's sake, it's a legal document,” he said, criticizing the Supreme Court for amending the document every term. “It's become a mini-constitutional convention every time you appoint a new nominee to the Supreme Court.”
About 150 students gathered Wednesday morning in the basement of the law library, where they peppered Scalia with questions, ranging from his strict interpretation of the right to bear arms to his bewilderment of Indian law - “Indian law is the most difficult, confusing area of law. We have largely made it up” - and his disapproval of Roe v. Wade, the landmark Supreme Court case that overturned all state and federal laws outlawing or restricting abortion.
Scalia, a staunch proponent of textualism, was careful to distinguish the original meaning of the Constitution from the framers' original intent, and struck down the notion that he was a strict constructionist, a philosophy that limits or restricts judicial interpretation. Scalia said his philosophy as a textualist and an originalist actually facilitates democratic change, and does not restrain flexibility.
While some Supreme Court justices maintain that the death penalty violates the constitutional prohibition against cruel and unusual punishment, Scalia said the country's founders wrote no such thing, and the issue should be dealt with by individual states, not by a federal body.
“You don't need a constitution to change, all you need is a legislature and a ballot box,” he said. “As new rights never identified by the people have been created by the Supreme Court, the scope of democracy has narrowed.
“It's something we should be very reluctant to tamper with,” he told the students. “We've been living under the strength of this document a century longer than Italy has been a nation. So don't mess with it.”
Scalia, who graduated from Harvard Law School, was nominated to the U.S. Supreme Court by President Reagan and joined the court in September 1986.
He is a former law professor at the University of Virginia and the University of Chicago and was a visiting professor at both Georgetown University and Stanford University.
Although Wednesday's lecture was open to the public and took place at a public university, Scalia asked organizers that his appearance be treated as a Supreme Court hearing, with all the attendant media restrictions the high court historically has placed on such events. Event organizers said still photography would be allowed at the beginning and the end of the jurist's speech, but toward the end of his remarks, Scalia paused and told a pod of crouching photographers that they were “a distraction.”
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R Stephen Hansell wrote on Sep 25, 2008 9:24 AM:
" They WERE a distraction, and had they shown a little more restraint as a group it wouldn't have been necessary for him to point out their lack of consideration and manners for Justice Scalia and the attendees. I noted at a recent media event that virtually all the attendees were neatly dressed, while the press people looked--to a person--like slobs. Do you need to be slovenly to be "artistic" or "creative"? "
david wrote on Sep 28, 2008 1:44 PM:
" Yes! Scalia is 100% correct. If society wants to change the Constitution and invent new rights not actually in the document, then they have the Amendment process through the Legislative branch. The Judicial branch's job is to tie or anchor the case before it to the document of the Constitution. Dont understand why the liberals dont understand that simple concept. "
helen javan wrote on Sep 25, 2008 6:15 AM:
FYI.....It's a pretty interesting article, I think. PAM "