Posted on 04/11/2003 5:07:27 PM PDT by 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
What they mean is that they believe the constutution to be really nothing more than a suggestion! And that should scare americans to death! These people MUST be defeated.
Dunno quite why you're getting so much guff for making this point, other than maybe because it is perceived as spitting on an icon around here. Nevertheless, you are quite correct.
Want a literal, strictly constructionist interpretation of the First Amendment? You have no free speech rights on the internet. Period. It's not literal "speech" (the act of verbal communication), nor is it a literal "press", so obviously the plain language of the First Amendment does not apply to the internet. There's your strictly literal interpretation - hope you like it.
But we don't do that, of course - we reason analogously that the internet is like a printing press, and should be treated as a printing press under the First Amendment. But the minute you do that, you've wandered away from the plain language of the Constitution in order to bring your own interpretation to it and apply what you think the principle underlying the actual language is. And we do that all the time - it's absolutely unavoidable, in fact. So then the question becomes not one of what the actual plain language means or allows, but how the principle underneath it applies to some new situation - and like it or not, that's an interpretive exercise.
Neither. The "most likely meaning intended" by the words "speech" and "press" is, respectively, "speech" and "press". Neither of which includes the internet, flag-burning, wearing a black armband to protest the war, painting a picture, carving a sculpture, et cetera, et cetera.
But most of us would agree that those things are or should be consistent with the spirirt of the law, if not the letter. So how can we do that without divining what the important principle behind the First Amendment is - IOW, how can we act in accordance with the First Amendment without first understanding why we have a First Amendment, what the First Amendment is for, what it's supposed to accomplish?
And unfortunately, answers to that question are likely to vary based on what sorts of societal constructs and expressions you find most valuable or useful. Scalia is one of the most brilliant justices in the history of the court, certainly possessed of the most intellectual firepower since Oliver Wendell Holmes, but he's not a literalist. He can't be. Texas v Johnson was not a literal reading of the Constitution, Scalia's rationalizations notwithstanding.
Of all the justices there have been, the closest one to a literalist WRT the First Amendment we've had recently was Hugo Black. And he embraced a sort of literalism that was not acceptable to a great many people - "speech" means only "speech" (he hated the notion of "symbolic speech") and that's it. "No law" means "no law", period, end of story. Which is completely internally consistent, in its own way, but it ends up ruling out whole classes of expression, simply because they fail to be literal "speech". Personally, I'm not comfortable with the notion that the state should have the power to regulate the works of, say, painters, simply because they fail to be orators or writers instead, and I suspect you feel much the same way.
OK, now that we've established that tautology, I think we can be pretty certain that the Founders intended for the 1st amendment to protect debate regardless of what unobtrusive physical form it takes. I can't imagine anyone disputing that notion. That's what I meant by "most likely meaning intended" (sorry if you had trouble interpreting me ;-)
This is all very different from what Strategery was saying, or at least implying. His post suggested that we should not base our understanding of the document on what was intended by those who made it.
You are pretty transparent.
Same place the burning cross penumbra came from I suppose.
You are right. This is the absolute worst decision in recent memory. This sets an extremely dangerous precedent regardless of how one feels about cross-burning.
You'd be amazed - Black did, and so did William O. Douglas on occasion. Saying that we ought to be able to extend the Constitution to new things by using analogies to the things covered by the literal language is not an uncontroversial assertion, historically speaking. In my observation, people tend to be strict grammar police-type literalists when it suits them, and argue for some more expansive interpretive exercise when it suits them - it's a human thing, I suppose. Scalia, being human, does that occasionally, too ;)
His post suggested that we should not base our understanding of the document on what was intended by those who made it.
Perhaps. If that's what was meant - essentially, that anything goes and the principles be damned - then I would say absolutely not. While we have little choice but to afford ourselves some latitude to interpret the Constitution in new and novel ways, that's not the same as saying that the Constitution can have any meaning we like - I once had an English professor who, in the context of interpreting poetry, pointed out that saying "it means whatever you want it to mean" is exactly the same as saying "it doesn't mean anything at all". We have to be free to look beyond the literal language to find a deeper meaning, but that doesn't mean that the deeper meaning is anything we want it to be.
Anyway, probably the best way to resolve that issue is to let that poster clarify for himself/herself exactly what was meant by that post....
Holy cow, man. Where've ya been? The Constitution has been sliced and diced every which way including loose for the past 90 years. A host of laws based on treaties, even though contrary to the Constitution and Bill of Rights have been regarded as the new supreme law of the land.
The 'progressive' interpretation occurred the day Article VI, Para 2 was whipped into a marxist/socialist omelet.
Not such an easy question to answer, if you think about it ;)
I'm not familiar with the rulings you're thinking of, but note that I did refer to "unobtrusive" physical forms of expression. If the rulings you're referring to worked against "symbolic speech" that involved nude dancing or some other choice gestures, then I'd have to agree with the judges' understanding of the 1st amendment.
Even the internet itself, I suppose, could be outlawed consistently with the 1st amendment, if it didn't discriminate between the types of opinions presented on it. But the moment the law discriminates based on what is being said, rather than how it's being said, then it seems clear enough to me that it's a prima facie violation of the 1st.
No, not even that - Black's dissent in Tinker v Des Moines is one of them, but I'll look around to line up a few others, if you're interested.
Even the internet itself, I suppose, could be outlawed consistently with the 1st amendment, if it didn't discriminate between the types of opinions presented on 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?
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