Justice Scalia speaks in New Orleans

Yesterday I had the opportunity to hear Justice Scalia address the local chapter of The Federalist Society. His speech, not surprisingly, was about “originalism,” which is the subject of his book A Matter of Interpretation.

Justice Scalia began by noting some differences between the way things are today as compared to how they used to be. When his nomination to the U.S. Supreme Court was voted on by the Senate in 1986 he received a 98-0 vote of approval, with the two missing votes belonging to Barry Goldwater and Jake Garnes (two conservative senators). He did not dwell on the obvious point that, if it occurred today, his confirmation vote would be much more controversial.

But while he is concerned about the politicization of the confirmation process, he is more concerned about how we go about deciding constitutional questions. He began by reference to the 19th Amendment to the Constitution. “Why did we need to pass that amendment?” he asked. He noted that it was adopted in the 1920’s to recognize women’s right to vote; the amendment was viewed as necessary because, at that time, people did not believe that the Constitution, as it was written, gave women that right. Today, of course, we would simply find that women were entitled to vote pursuant to the Equal Protection clause of the 14th Amendment.

What changed between 1920 and now? Obviously, our views about how we interpret the Constitution. We no longer feel bound by the original meaning of the words embodied in that document. We have come to believe that we have a fair amount of latitude in interpreting the Constitution, and that usually means that we simply apply our current socio-political views, even though those views may be at odds with the original intent of the Constitution’s framers.

How can we justify a method of interpreting the Constitution that is dependent, not on the historical context in which it was adopted, but rather on the views that are dominant at the time that a constitutional question is raised? The purpose of the Constitution, Justice Scalia argued, was not to be “a living breathing document” that evolves, but rather to be a rigid legal compact that ‘restrains.’ While it may make us feel good to interpret the Constitution to always reach the desirable social result, this is not a principled legal approach and, in fact, it is insidiously harmful.

Justice Scalia stressed that the inclination to ‘do good’ by misinterpreting the Constitution –or worse, by simply finding new rights– is not a tendency exhibited only by so-called liberals. Conservatives have also applauded the twisting of the Constitution as long as it was done in furtherance of a goal that they deemed worthy. For example, conservatives loved the majority opinion in BMW v. Gore, which held that an outrageous award of punitive damages by an Alabama jury was unconstitutional. Not surprisingly, Justice Scalia dissented and observed “I do not regard the Fourteenth Amendment’s Due Process Clause as a secret repository of substantive guarantees against ‘unfairness’–neither the unfairness of an excessive civil compensatory award, nor the unfairness of an “unreasonable” punitive award.”

The fact that both conservatives and liberals are now busily engaged in creating new rights is one sign of the insidious harm that comes from an unrestrained approach to constitutional interpretation.

Justice Scalia ended by saying that, in giving these talks, he always tries to end on a positive note but never succeeds. People don’t want to do things that make them feel bad, and what he proposes is not a joyous thing. “The judge who believes in the ‘living breathing constitution’ is a happy judge,” he pointed out. When he comes home and his spouse asks him how his day went he can say it “went just fine” because he was able to interpret the Constitution to reach a result that he deemed to be correct and just.

Justice Scalia, who is no fan of those who would choose to burn the flag, said that once, after a decision in which he upheld the 1st Amendment rights of flag burning protesters was issued, he came home to find his wife whistling “Stars and Stripes Forever.”

It’s hard to be a judge who believes in a constrained approach to constitutional interpretation, but not because of spousal barbs. The barbs Justice Scalia receives from his wife are actually given in a loving and playful way. But the reactions he receives from those who staunchly disagree with his views on constitutional interpretation are often filled with scorn and contempt. Which is unfortunate, but also strange. I can understand how people would not accept most of his views, and I’m certainly not saying I agree with everything he says either. But how can you not be at least intrigued by a judge who believes that the power of his office should be constrained? Most people who govern want to arrogate power, not decline it.