Scalia Attacks ‘Living Document’ Interpretations of Constitution.

Ole Miss Website ^ | 4/11/03 | Angela Moore

[bourbon]

04/10/2003

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

[bourbon]

I attended this speech it was quite good.

Please permit me some initial cheap shots.

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.

1) Why can't they speak for themselves? Biting a pillow somewhere? 2) I agree you should speak up for those who can't speak up for themselves. Now, next time get it right and speak up for the unborn!

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[wardaddy]

Very nice esquire.

Sorry to see Scalia singling out cross burning last week. I have reservations about that.

I rarely ever disagree with he and Clarence.

[Puppage]

The criminals that are the democRATic party want this to be a living document so they can bend it every which way, so it meets their needs, whenever & wherever.

Can anyone say FLORIDA SUPREME COURT 2000??

EVIL NEVER SLEEPS

[jwalsh07]

Scalia understands that you can't have it both ways. If someboy wants to burn the American flag, they are doing so in an attempt to incite. I'm incitable but I understand two things. They have the right to burn it and if I take umbrage and knock them on their ass, I'll have to pay the penalty.

I can live with that.

[bourbon]

Then there's this awful article about the speech in the Student newspaper.

And an even worse opinion column written in response to Justice Scalia.

[snip]

COLUMN - Theory of interpretation flawed

...

So, here is my dissension to Justice Scalia's views on constitutional interpretation.

First of all, the Constitution is inherently flawed. How can you apply a document to everyone in the country, in the manner was it was originally intended when many people - the poor, women, blacks, Native Americans, etc. - didn't have a voice in the government?

Secondly, as one English professor intuitively pointed out, language changes over time. People of Justice Scalia's generation have trouble understanding what people of my generation say, and vice versa. It's only logical to assume that chances for miscommunication would be greater when you have people interpreting something that is more than 200 years old.

Another point is technology changes as do other aspects of everyday life. Today's country would probably seem like a whole new world to the framers of the Constitution. So, of course, issues such as abortion, gay rights, wire tapping and more weren't addressed by the Constitution. They didn't exist.

How can you adequately address these issues if you're trying to look at them through 200-year-old eyes? Things that are considered acceptable now would probably give James Madison and the like a heart attack.

However, you don't revert to the past in order to handle these issues. You take the times and the morals (if there are any) of the people into consideration and then act.

What also bothered me is the assumption that one can actually know what was going through the minds of people during the infant stages our country. Essentially, you aren't determining what the framers said, you are only saying what you think they would have said. How would you know?

When the Constitution was being drafted, those involved couldn't even agree, so how could you extract one meaning from a document that was drafted by a group of people that was divided?

Justice Scalia said, "If you have a living Constitution, the only kind of Constitution that you'll have is the kind of Constitution the society of that time wants."

I believe that's the point of having a democracy where supposedly the people rule.

That, Mr. Scalia, is why I feel a living interpretation of the Constitution is needed at this point in time. I agree that a "living Constitution" may not be a panacea for what's wrong with this country. But it is essentially the best choice.

However, it is better than an ultra-strict, ultra-exclusive interpretation that is simply a small group of people imposing their opinion on others under the guise that it is what was intended by the original words.

The only way to interpret the law in a manner that all people will receive the greatest benefits is to maintain a document that alters with the times. Of course the powers that be make plenty of mistakes, but that's why checks and balances are a practice of our government.

Besides, the way the country is run is supposedly up to the people, not men who died hundreds of years ago.

[/snip]

UGH! Clearly the best way to destoy the Constitution is to believe that it's living.

[TopQuark]

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.

It is very sad that the 2nd-year law student does not know the difference between the two and thinks that every speech or lecture should be a debate.

[patton]

So where did Scalia's "drug exemption" come from?

Some sort of penumbra? Or just another hypocrite?

[bourbon]

The key to the cross-burning decision, as I understand it, is that the state could prohibit the act if it was done with specific intent to intimidate or harm another person. The act of burning a cross on one's own property or at, say, some racist's hootenanny would still, I presume, be constitutionally protected.

I confess to not having read the decision though.

[wardaddy]

I believe the cross burning decision singled out a "political expression" for the first time I'm aware of and left the intent up to the prosecutor. That makes intent pretty nebulous to me. If a group of loonies wish to go out on their farm and light a cross and harm no one that is not my business. Lighting it while dressed as clowns in a black or jews yard is an issue and we already have laws for that.

Some folks light the cross in a pre-KLan way...rare but it has happened.

I don't much care for flag burning either but I support their right to do it much the same as I support your right to smack em for it.

This decision will broaden...they always do. Just wait.

[jwalsh07]

My dingaling, I misread cross-burning as flag burning.

[wardaddy]

Actually, one of the defendants had burned the cross on his own property.

Intent left to prosecutors will mean one thing in Grundy County Tennessee and quite another in Hinds County Mississippi if you get my drift.

I thought it was bad law and precedent. It will morph. I can see marches with any CSA memoribilia or anti-abortion rallies with certain photos falling into the same trap....militant pro-RKBA rallies could also be at risk.

The act meant to intimidate a specific group is what drove this. It reminds me of hate crime logic. Some folks who are the target of intimidation warrant more protection than others.

I'm intimidated by Nation of Islam rallies and the poster themes they carry. Is anyone going to ban these as well under the guise of intent to intimidate? Not likely.

However, when you do get around to reading it and you being more astute in the interpretation of such matters than I then I would most welcome your corrections ...humbly.

[Noumenon]

Clearly the best way to destoy the Constitution is to believe that it's living.

We'll settle this and many other questions in the next American Civil War

[Arkinsaw]

So where did Scalia's "drug exemption" come from? Some sort of penumbra? Or just another hypocrite?

Scalia's law and order gene sometimes overrules his liberty gene as it does with many conservatives. I cringe when I think of the woman who lost her car because her husband solicited a prostitute with it. She did not get justice, she got screwed, and the Police department got a car to sell.

That being said, Scalia is a great justice. He and Thomas are the only ones on the court who actually understand the Constitution and that a free republic can't be built on sand.

He ain't perfect, but he is 1,000 times better than the other choices.

[supercat]

...and left the intent up to the prosecutor.

And the jury, I would expect.

[eno_]

Flag burning is a test: Which is more important? The substance of the Founders' vision of maximum freedom, or the symbol of that freedom?

Educated conservatives know the symbol can be sacrificed for the substance. More practically, they know the shoe can be on the other foot, and Hitlery would very like to ban our expressions of dissent.

[wardaddy]

I should have left that out honestly...it was just a casual comment and I like the young fellow who posted this thread...he's a homeboy.

I don't much feel like defending that blurb all night...lol

I see we now have a new homepage system...nice. I would sure love a spellcheck incorporation. I'm finally rebuilding mine. It would be a boon to failing eyesight old farts like me.

[supercat]

Clearly the best way to destoy the Constitution is to believe that it's living.

Calling the Constitution a "living document" is like calling a moth-infested overcoat a "living garment". --SuperCat

[supercat]

Flag burning is a test: Which is more important? The substance of the Founders' vision of maximum freedom, or the symbol of that freedom?

Which is worse--burning a copy of the Flag, or desecrating the real Constitution?