Scalia Attacks ‘Living Document’ Interpretations of Constitution.

UNIVERSITY, Miss. - U.S. Supreme Court Justice Antonin Scalia told a standing-room-only crowd at the University of Mississippi Thursday afternoon to beware of the concept of the Constitution as a "living document."

Scalia, 67, a conservative justice known for legal decisions based on strict interpretations of the U.S. Constitution, said people who want change in society should use the democratic process, not the courts, to bring it about.

"What makes you think that a living Constitution is going to evolve in the direction of greater freedoms?" Scalia asked. "It could evolve in the direction of less freedom, and it has."

The controversial jurist drew more than 900 students, faculty, staff and others to Fulton Chapel for the James McClure Memorial Lecture in Law. The event was free and open to the public.

Scalia, a Reagan appointee who has served on the nation's highest court since 1986, has angered both liberals and conservatives at times with his opinions. In 1989, he cast the deciding fifth vote in Texas v. Johnson, the decision that struck down laws against burning the American flag. At the time, conservatives were incensed. Thursday afternoon, Scalia told the UM crowd in that case and others, he was handcuffed by the Constitution.

"I would have been delighted to throw Mr. (Gregory Lee) Johnson in jail," Scalia said of the man tied to the flag case. "Unfortunately, as I understand the First Amendment, I couldn't do it."

While Scalia's strict interpretation protects those rights expressly written by the framers in 1791, he said he doesn't recognize rights that many people today take for granted as constitutional. For instance, Scalia, a devout Catholic and father of nine, has vigorously opposed abortion on the grounds that it's not a right guaranteed specifically, even though other justices interpret it otherwise.

But this kind of interpretation, Scalia said, goes far beyond their role as jurists and turns justices into policy makers, which in turn pollutes the selection process.

Scalia referenced the embattled Bush nominations to the U.S. Court of Appeals.

"People have finally figured out ... that judges aren't interpreting law anymore, they're making policy," Scalia said. "So I don't want a good lawyer, I want someone who agrees with me.

"We'll have to have a mini-constitutional convention every time they select a new justice of the Supreme Court."

Outside Fulton Chapel, about 15 students from the campus chapters of the National Organization for Women and the Gay, Lesbian, Bisexual and Transgender Association staged a quiet protest.

"There are several important cases in front of the court right now," said Amy Clukey, president of UM's NOW and a senior from Deltona, Fla. "Sodomy laws, affirmative action at the University of Michigan, and of course, abortion rights are always an issue."

Chris Kelly from Sherman carried a sign that read: "Sodomy Laws are against basic human freedoms."

"I wanted to take the opportunity to speak up for those who are unwilling or unable to speak up for themselves," Kelly said.

Inside the auditorium, Scalia drew fire from the other side of the political spectrum when he opened the floor to questions. Jim Giles of Richland, a private citizen and outspoken proponent of conservative causes, had driven to campus for the speech. He told Scalia that the university's ban of flags on sticks in Vaught-Hemingway Stadium was just a "pretext to ban the Confederate flag. How isn't that unconstitutional?"

Scalia paused, then answered slowly, with a wave of his hand. "I have no idea."

The crowd laughed and applauded. The Supreme Court has upheld the university's right on the ban.

After the speech, second-year law students Brett McColl of Toledo, Ohio, Joey Long of Henderson, N.C., and David Ford of Memphis said Scalia argued so convincingly for strict constitutional interpretation that they wished another legal scholar had been available to present a counter-point.

"I generally disagree with just about everything the man writes, but he's definitely intelligent and knows the law," McColl said.

According to Scalia, knowing the law and how to apply it is his only job.

"People who want to read one new law into the Constitution after another, from abortion rights to grandparents' rights, are not looking for a flexible government," he said. "They're looking for rigidity."

It was Scalia's third appearance in the McClure Lecture Series and the sixth time a U.S. Supreme Court justice has presented the lecture. Henry Blackmun delivered it in 1982, Sandra Day O'Connor in 1988 and Clarence Thomas in 1995.

The series was established by James McClure Jr. of Sardis and Tupper McClure Lampton of Columbia in honor of their father, a Sardis attorney and UM law school alumnus.

by Angela Moore

No, not even that - Black's dissent in Tinker v Des Moines is one of them

OK, I just finished looking at that dissent, and it didn't look to me like he was railing against "symbolic speech", but at the notion that "Congress* shall make no law" means "school officials shall adopt no policy". He didn't leave me with the impression at all that he would uphold a law that puts people in jail for wearing black armbands.

but I'll look around to line up a few others, if you're interested.

I would be interested, thanks, but don't put yourself through any trouble over it.

Well, banning it outright wouldn't discriminate based on viewpoint - if nobody gets to use it, then everyone's ability to communicate is stifled, and no particular viewpoint is suppressed. But is that really consistent with what we understand the First Amendment to mean?

Probably not. That may have been a little extreme, since it can scarcely be argued that the internet creates a public nuisance. I was just making a point that the primary effect of the 1st amendment is to protect viewpoints, and laws that are clearly designed to do something other than stifle political debate (such as nude-dancing laws) can't be considered a violation, provided they're administered impartially.

It makes a little more sense in the context of the full decision, but his shorter dissent in Street v New York is also a bit clearer about where he was coming from.

I was just making a point that the primary effect of the 1st amendment is to protect viewpoints, and laws that are clearly designed to do something other than stifle political debate (such as nude-dancing laws) can't be considered a violation, provided they're administered impartially.

So if the thing is a public nuisance, and it affects people regardless of the viewpoint being expressed, then we don't have to consider it a protected form of expression?

So can we ban rap music? I bet you I can dig up a lot of people who consider it a public nuisance - in fact, I bet I could dig up nearly as many as consider nude dancing a public nuisance - and if we ban all rap music regardless of the opinions being expressed in the performances, we're clean, right?

It makes a little more sense in the context of the full decision, but his shorter dissent in Street v New York is also a bit clearer about where he was coming from.

OK, I can see your point there. In defense of Black, he did point out that the ban applied regardless of what the flag-burner's opinions were, so therefore he wasn't prosecuted for engaging in an opinion, just for engaging in a particular act that the state decided to outlaw. There's a subtle difference between this and the black armband, because the latter wasn't prohibited because people didn't like the sight of black armbands, but because of the message it contained. It's hairsplitting, I know, but it still seems to preserve the basic intent of the first amendment.

So can we ban rap music? I bet you I can dig up a lot of people who consider it a public nuisance - in fact, I bet I could dig up nearly as many as consider nude dancing a public nuisance - and if we ban all rap music regardless of the opinions being expressed in the performances, we're clean, right?

Actually what I think people find noisome is the blasting of rap music from car stereos and such. It would be much harder to argue that rap music confined to a concert hall is a public nuisance - unless of course you start talking about the secondary effects it's believed to have (violent behavior, etc.), but that's opening up a whole new can o' worms.

In defense of Black, he did point out that the ban applied regardless of what the flag-burner's opinions were, so therefore he wasn't prosecuted for engaging in an opinion, just for engaging in a particular act that the state decided to outlaw.

Right, but also notice that implicit in that is the dismissal of the notion that the burning of a flag is itself an expression of a particular opinion. And we all know very well what that opinion is - burning a US flag in public is shorthand for some variation on the I-hate-the-United-States theme.

Now, I can't help but think that people usually reach for the secondary-effects argument when considering nude dancing, pornography, and the like, so let's try our hands at a little creative editing.

Actually what I think people find noisome is the ~~blasting of rap music from car stereos~~ public display of nudity and such. It would be much harder to argue that ~~rap music~~ nude dancing confined to a ~~concert hall~~ private club is a public nuisance - unless of course you start talking about the secondary effects it's believed to have (violent behavior, etc.), but that's opening up a whole new can o' worms.

:^)

AAAGHH! You got me. So let's see how I might be able to sum things up in a way we might both agree upon.

Basically, there's always going to be cases with every law where drawing the line can be tricky. This does not mean, however, that we can't know the core meaning of the law, and what principles we should use in determining where that line should be drawn. Every reasonable person knows that "speech" and "press" in the context before us are not simple references to vibrations of vocal cords, and block letters smushed against paper. This understanding can both expand protections (symbolic speech, internet) and restrict them ("Fire!" in the crowded nightclub). Further, almost anyone on the street knows, deep down, that the reason for this amendment was to protect public debate on public issues. The "hard cases", therefore, need to be judged in that light.

And I fully maintain that the meaning of this and other provisions of the Constitution have not changed in 200 years, and will not change in the next 200, unless they're amended. I know you've agreed on that point already, but it's worth emphasizing, as it cuts to the heart of the notion of a "living, breathing" document susceptible of "progressive" (to use Strategery's word) interpretations.

"Strict constructionist", in a nutshell, I don't think ever meant "obsessive literalist". It simply means that judges take pains to apply the Constitution for what it says (reasonably, common-sensically understood), and not for what they think it should say.

Now, I can't help but think that people usually reach for the secondary-effects argument when considering nude dancing, pornography, and the like, so let's try our hands at a little creative editing.

The USSCT has consistently refused to extend the secondary-effects analysis beyond its opinion in Renton v. Playtime Theatres. In that case, the Court found that a zoning ordinance restricting nude dancing to a certain part of the city did not offend the 1st Amendment because it did not seek principally to restrict the underlying speech but only sought to regulate its harmful "secondary effects."

Though frequently argued outside of the nude dancing context to justify state action, this argument is a non-starter with the Court.

The USSCT has consistently refused to extend the secondary-effects analysis beyond its opinion in Renton v. Playtime Theatres.

Depends on what you mean by "extend". If you mean that the Court has declined to apply the secondary-effects analysis to areas beyond adult businesses, then I agree. If, hoever, you mean that the secondary-effects analysis of Renton remains the same now as it was in 1986, that's not at all the case - City of Los Angeles v. Alameda Books has made the secondary effects analysis of Renton into a complete joke. If it holds up, municipalities won't have to do much more than assert that negative secondary effects exist, where any evidence at all supporting the existence of secondary effects is acceptable, and therefore any old fig leaf will do...

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