Skip to comments.Justice Scalia on Restoring the Constitution: "I don't know that I'm optimistic."
Posted on 11/08/2012 6:36:21 PM PST by SC_Pete
(CNSNews.com) Supreme Court Justice Antonin Scalia said recently that--"especially after last term"--he does not know if he is confident the Constitution can be restored to its original meaning.
He likened his own efforts to do so to the character "Frodo" in the Lord of the Rings, who fights the good fight not certain he will win.
While discussing his new book Reading Law at Stanford University on Oct. 19, the Hoover Institutions Peter Robinson quoted to Scalia a passage from Scalia's book, Reading Law: "Originalism does not always provide an easy answer, or even a clear one. Originalism is not perfect. But it is more certain than any other criterion, and it is not too late to restore a strong sense of judicial fidelity to texts."
So heres the question, said Robinson. This book, for that matter your entire career, represents a sustained, determined effort at restoration. Are you optimistic? Hows the project coming?
Scalia said: Thats an unfair question, especially after last term. I dissented in the last 6 cases announced last term. So I dont know. I dont know that Im optimistic. The fight is worth fighting, win or lose. You know, [like] Frodo in the Lord of the Rings.
Look," Scalia contiued, "the problem is that the other approach is enormously seductive. Even for the average citizen its seductive, to think that the Constitution means what it ought to mean. Its a living Constitution. Anything I care passionately about, its right there in the Constitution.
You know, people used to say when they dont like something thats going on, they say: 'There ought to be a law,' said Scalia. There used to be a comic strip thatd--there ought to be a law about people playing boom boxes in the park and stuff like that.
People dont say that anymore, said Scalia. They say, Its unconstitutional, if they really feel passionately about it. And it is even more seductive to judges. Its a wonderful thing to have a constitutional case and youre always happy with the result because it means exactly what you think it ought to mean.
The originalist perspective says the words of the Constitution should be given the same meaning they originally had in the minds of the Framers. A competing view,often advocated by contemporary liberals, is that the Constitutio is a living document and that judge can change its meaning to fit modern mores and sentiments.
The Constitution itself expressly provides an amendment process for people who want to change it.
Scalia was promoting his new book, Reading Law: The Interpretation of Legal Texts, co-authored by Bryan Garner.
Comment: Justice Scalia and the other three "originalists" on the Court have the intent of the founders on their side. James Madison, "the father of the Constitution," wrote in 1825, "I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution."
In 1803, Thomas Jefferson wrote, "Our peculiar security is in possession of a written Constitution. Let us not make it a blank paper by construction." (Emphasis added)
Unfortunately, that is exactly what has happened over the last century, as the Supreme Court, time and time again, has failed to "resort to the sense in which the Constitution was accepted and ratified," and has instead "made a blank paper of it by construction." Thus we are left today with an all-powerful federal overnment, the very creation of the states themselves who had intended that it have only limited powers has, with the concurrence of the Supreme Court, usurped powers in virtually every area of governance that the founders had left to the states, and rendered both the Ninth and Tenth Amendments meaningless.
Justice Scalia's lament is understandable to those who recognize the truth of both Madison's and Jefferson's writings, that a Constitution that means what ever the current members of the Court say it means, without reference to the meaning at the time it was ratified by the states, is actually meaningless, "a blank paper" in Jefferson's words.
The only real hope we have of restoring the Constitution is an effort by the people themselves, through their state governments, to force the federal government to relinquish the powers it has usurped.
Constitutional Law Professor Randy Barnett of Georgetown University has put forth such a proposal - published in both the Wall Street Journal and Forbes Magazine. Prof. Barnett's "Bill of Federalism" consists of 10 proposed amendments that would have the effect of putting the original meaning back into the Constitution, and reversing the broadening of powers of the Federal Government. If adopted, the Bill of Federalism would force the Federal Government to close every agency and department that is unconstitutional under the terms of the original Constitution within five years.
Here is a link to the Forbes Magazine article - note that there is a link at the bottom of the article to the actual Bill of Federalism, along with a resolution for states to adopt it.
Fat Chance of restoring the Constitution with 2 dykes and sell out Roberts.
The Court is now 5 - 4 liberal, and it will get worse.
Do they mean the plain words on the parchment? Or is there wiggle room?
I'm less than impressed with many of his decisions.
I am really afraid or maybe I should say sure that the Constitution as we know it has been abandoned! It matters little these days whether the Supreme Court or anyone else agrees or disagrees.
The only thing that will restore the Constitution seems to be another uprising of the people that support it. Not sure that it could happen today though - too many passive folks just watching as our liberties continue to erode. When it happens slowly, it is not noticed.
In an interview, Scalia said he has about as much “hope” as Frodo had. It will be almost impossible to return our country back into a Constitutional Republic. But he did say, there was a slight possibility.
He'll be safe. As should be.
He does need to wrap his head around the plain words on parchment every now and then.
Oh, I'm sure that somewhere near D.C., there's a Gulfstream pilot with a flight plan to Malta prepped and ready to use.
Check out the link to Randy Barnett. His Bill of Federalsim addresses many of these issues confronting our country now: he provides a strategy for changing the Copnstitution. Given the 30 governors and legislatures, it is not as far-fetched as you might think.
The Constitution has been dead since the New Deal. All it is now is a fig leaf for statism.
Without any further looking... I don’t want to change the Constitution - I want to preserve it! Big difference..
Not sure what you meant but will assume that you also meant preserve the Constitution until I know otherwise.
could this be what Mark Levin is hinting at?
This is where we need to focus our attention. We have the ability to outnumber the federal bureaucracy with 50 state bureaucracies. If even a handful of states could be energized to become firewalls for freedom and face up to the feds using the Constitution as their weapon this battle can be won.
From this point on, I could care less about the Feds. My energy will be focused upon trying to energize my state into action. We will be looking into every option, both legislatively as well as the utilization of ballot amendments to achieve maintaining our freedom.
probably applying Thomas "The tree of liberty must be refreshed from time to time" Jefferson's words of wisdom... hopefully more with their blood
Check this out. Scroll down to the Bill of Federalism:
... First, that Congress shall call a convention, consisting of delegates from the several States selected by procedures established by their respective legislatures, for the purpose of proposing the following articles be added as separate amendments to the Constitution of the United States, each of which shall be valid to all intents and purposes as part of the Constitution when separately ratified by the legislatures of three-fourths of the several States; ...
Resolution for Congress to Convene a Convention to Propose Amendments Constituting a Bill of Federalism
The Constitution is the Supreme Law of the United States. Article V of the Constitution provides two ways for amendments to be proposed and two ways for them to be ratified. Congress may propose Amendments to the States, or the States may petition Congress to declare a constitutional convention to propose amendments. While there have been resolutions in favor of Constitutional Conventions, Congress has always preempted them by proposing the amendments themselves. Once proposed, an amendment can be ratified by a three-fourths vote of either the State Legislatures, or by State Convention. The amendment can specify how it is to be ratified: only the Twenty-First Amendment was ratified by State Conventions.
Barnett would like the States to call for a Constitutional Convention. This was in fact his main proposition when he appeared on the Glenn Beck show, with the actual amendments being drafted later. He has drafted a resolution to call for a convention. He believes that this is a necessary step, as Congress would not voluntarily propose amendments which largely weaken its power.
Gerard N. Magliocca has written an article supporting the idea of calling for a Convention.
The John Birch Society has criticized the idea of calling for a constitutional convention, calling it a “dangerous temptation” and a “threat to our Constitution.” Barnett has countered that historically, whenever the states have called for a Constitutional Convention, Congress has responded by proposing the amendments themselves. He also notes that even in the case of a constitutional convention, the proposed amendments still need to be ratified by three-quarters of the states.”
He should be perfectly safe. As it should be.
This is a way of preserving by erecting a fence of contemporary language that cannot be avoided or subverted. The Bill of Federalsim turns the clock back to the orginal intent of the framers.
Thanks, intent of the framers says it all!
It may be. If we don’t do something NOW, our goose is cooked anyway. Here’s a paper promoting the idea of a Consitutional Cinvetion published in the Cardoza Law Review:
click on download:
Amendments to the Constitution require 3/4 ratification by state legislatures. WE HAVE 30 GOVERNORS AND LEGILATURES. The process could be controlled by RED STATES. We have an edge right now, but the number of red states will decline precipitously in the near future. THIS IS A NUCLEAR OPTION THAT THE RATS TRULY FEAR. We could stop them in their tracks—and erase 100 years of Progressivism’s effect on the Constitution.
Yep. They discovered they could take earnings from one group and buy votes with it from another who did nothing (but vote) to earn it. That was the day our own government started oppressing and enslaving it's own people.
Today, we are nothing to them but sweat equity. In fact, our labor, or potential labor when we're born, is bought and sold on the market in the form of bonds.
But it has been under assault for 100 years. I urge you to read the Wiki entry on Randy Barnett and the details of his Bill of Federalism. A convention would hash all this out and the specific amendment would have to ratified by 3/4 of the legislatures. RAT proposals would go nowhere since they only have 20 states (or 27 if you count it Obama’s way.) :)
I like your analysis. I like it a lot.
While the Constitution is a dead letter, I don’t favor a Constitutional Convention. It is an invitation to get a document full of “positive rights”. Be careful what you wish for.
Prayers for the Supreme Court justices.
A man that ought to know has just given a nod that any effort to restore our freedoms is warranted. He, a man that adjudicates our rights from the highest court of the land, has clearly stated that he is not confident that our freedoms, our rights, can be restored in this corrupt system, including within his own court. Should there be a revolution of any sort, we have the moral high ground.
You are missing the point. We control enough state legislatures to insure only the changes to the constitution we desire will be considered. The garbage the left would like wouldn’t even be brought up.
“It doesn’t take an uprising. Study Ghandi.”
Love ya, man, but you do need to study Ghandi. He did not change the country, it took the bloody revolution after him to do the trick. He got the credit but he didn’t get the affect.
Declaration of Independence & US Constitution
Righto. They messed with it from the getgo, especially Hamiltonian/Marshallian Federalists. Things weren’t horribly awry until 1861. Then constitutional government slipped away for four years,; decades in certain sections of the country. Wilson lighted the way. Hoover was the first to treat peacetime disaster as equivalent to war. FDR maimed it. SCOTUS kept it on life support fir a bit, then for no good reason pulled the plug in 37, killing the Constitution for good 75 years ago.
The Revolution Was, as Garrett Garrett put it. I remember thinking the first time I seriously read the Constitution—in junior high when I should’ve been paying attention in class—what is this? Doesn’t sound anything like what I see on the news. So it’s always sorta been dead letters to me.
Both are required.
I don’t. EOM.
Ghandi wasn’t even much of a distraction. The spilled blood made the change. The Brits were more than willing to keep up with the likes of Ghandi. It was the bloodshed and the need for expensive troops that got them to let go.
Intent is a trap to which we can’t seem to help falling prey. Original meaning is what matters, not intent. The latter is far too nebulous. Plus, what happens when the Framers screw up and say something different than intended? Meaning must trump intent, otherwise we’d be as bad as the lefties for pretending absent words are present and present words don’t matter.
Somewhere I've got vid of an old, old woman talking about how she saw him when she was a child, at a railway station.
He did matter. He visited the Queen. Children remarked on his humble appearance.
Fast forward to the '60s. Where did America lose the war? In the field? No. Not even with the evil dip---- that was SecDef.
We lost that war in the living room of America in front of the warm radiation of B&W televisions.
Uncle Walter played a large part in that.
Yes, I agree. I guess that intent is way too open to today’s interpretation. I agree - Original meaning is much better. Sure wish that that interpretation was more prominent today.
Sorry about the use of that that...but sometimes clarity is necessary...heh.
We do not need to fear for Justice Roberts. Perhaps he should fear for himself.
I think convening a convention is the only responsible way to preserve the constitution. Too many loopholes have been found in the last 200 years and they need to be closed. By us.
I think that you may be onto something! It just might be time to do that. I always considered that the last thing that would happen but today, it seems like the more appropriate thing to do.
When the National Government fails us, it is way past time for the States to act. Yes, I really like your idea.
Lots of people visit the queen. He didn’t leave with India’s freedom.
And no, actually, the government has to agree to a state visit. You and I would not make it past the first cut.
Unless you can juggle kittens or something...
1st Amendment, keep it the same except for no talking bad about religion Jihad. 2nd Amendment? Out. 3rd Amendment? Who does that anymore? (Except we did, in Britain during WWII, but it was legal there).
It's a can-o-worms aka pandora's stash box you are looking at opening.
Actually, I have met the queen. Dad was a a diplomat. She meets a number of people every day.
Actually, I have met the queen. Dad was a a diplomat. She meets a number of people every day.
Just like we lost the election... But in HI Def.
It wasn't 'being mentioned in dispatches' kind of stuff.
Still, Ghandi didn’t walk away with independence. It took spilled blood to get that.
I don't do the TV drug thing.