An Online Journal of Political Commentary & Analysis
Volume V, Issue # 225, September 5, 2003
Dr. Almon Leroy Way, Jr., Editor
Government Committed to & Acting in Accord with Conservative Principles
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By Associate Justice Antonin Scalia

What is the function of the courts of law? This is a matter of interest not to only judges and lawyers, but any intelligent American citizen, whether or not he or she is a philoso- pher. What do you think your judges are doing when they interpret the Constitution? It's sad to tell you that, after 200 years, there is no agreement on this rather fundamental question: What is the purpose of the enterprise of judicial interpretation?

I belong to a school, a small but hardy school, called "textualists," or "originalists." That school used to be "constitutional orthodoxy" in the United States.

The theory of originalism treats a constitution like a statute, giving the constitution the meaning that its words were understood to bear at the time they were promulgated.

You will sometimes hear it described as the theory of original intent. You will never hear me refer to original intent, because I am first of all a textualist, and secondly an original- ist. If you are a textualist, you don't care about the intent, and I don't care if the Framers of the U.S. Constitution had some secret meaning in mind when they adopted its words. I take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words.

I do the same with statutes, by the way, which is why I don't use legislative history. The words are the law. I think that's what is meant by a government of laws, not of men. We are bound not by the intent of our legislators, but by the laws which they enacted, laws which are set forth in words, of course.

As I said, this view, until recently, was constitutional orthodoxy. Everyone at least said so. Everyone said that the Constitution was that anchor, that rock, that unchanging in- stitution that forms the American polity. Immutability was regarded as its characteristic. What the Constitution meant when it was adopted is what it means today, and its mean- ing doesn't change just because we think that meaning is no longer adequate to our times. If the Constitution's meaning is inadequate, we can amend the document. That's why there's an amendment provision in the Constitution.

This theory of constitutional interpretation, again, was constitutional orthodoxy. When I say constitutional orthodoxy, I don't mean to say itís just judges and lawyers who are concerned. Judges and lawyers are not very important. It's ultimately the American people who are concerned. What do the people think this document is, and what do they think it means?

That the people thought the way I think is demonstrated by the Nineteenth Amendment, adopted in 1920. That is the amendment which guaranteed women the right to vote. As you know, there was a national campaign of "suffragettes" to get this constitutional amendment adopted, a very big deal to get a constitutional amendment adopted. Why? Why did they go through all that trouble?

If people then thought the way people think now, there would have been no need to add the Nineteenth Amendment to the Constitution. In 1920, there was an equal protection clause, right there in the Constitution, in the Fourteenth Amendment. As an abstract matter, what in the world could be a greater denial of equal protection of the laws in a representative democracy than denial of the electoral franchise--the right to vote--to women or to any other group of adult citizens with sound minds. The suffragettes could just come to the court and say, "This is a denial of equal protection," and petition the U.S. Supreme Court to invalidate all state laws denying the franchise to women, to de- clare such laws to be violations of the Federal Constitution and therefore unconstitu- tional and null and void.

Why didn't the suffragetters take this course of action? Because they didn't think that way.

Equal protection could mean that everybody has to have the vote. It could mean that. It could mean a lot of things in the abstract. It could have meant that women must be sent into military combat, for example. It could have meant that we have to have unisex toilets in public buildings. But does it mean those things? Of course, it doesn't mean those things. It could have meant all those things. But it just never did. That was not its understood meaning. And since that was not its meaning in 1871, it's not its meaning today. The meaning doesn't change.

There have been a lot of reasons why you could deny the vote, not only on the basis of sex, but also on the basis of property ownership. On the basis of literacy. Denying the electoral suffrage on any or all of these bases was never regarded as a denial of equal protection. And since it never was, it isn't. That's how the people in the late nineteenth and early twentieth centuries thought. An amendment to the U.S. Constitution had to be drafted, proposed, and ratified in order to give women the right to vote.

Now you know that wouldn't happen today. You know that the issue today would be re- solved in the U.S. Supreme Court. People would come to the court and would say, "The equal protection clause should mean this, and therefore it does mean that. Never mind what it originally meant."

How much things have changed is reflected in our case law, most clearly in our Eighth Amendment jurisprudence. The Eighth Amendment prohibits cruel and unusual punish- ments. Some of our cases in recent years say that what constitutes cruel and unusual punishments depends on the age. What line of thought underlies the Eighth Amendment changes made and being made according to the phrase, "to reflect the evolving stand- ards of decency of a maturing society"? What does this phrase mean? The phrase, which is the one writers of Supreme Court majority opinions now use, means that every day, in every way, we get better and better.

Now, you know that Pollyanish attitude is not the attitude that is possessed by people who adopt a bill of rights. People who adopt a bill of rights know that societies not only evolve, they also rot. And they are worried that future generations may not have the integrity and wisdom that they do, so they say, "Some things we are going to freeze in, and they will not change."

But no, the contemporary generation does not see it that way, and will not have it that way. With all this development, away from originalism, that has occurred within the past forty years, we believe, the Supreme Court believes, and, worst of all, the American people believe, that, not only the Eighth Amendment, but the whole Bill of Rights, the whole Constitution, "reflects the evolving standards of decency of a maturing society." Or, to put it more simply, the Constitution means what it ought to mean. Not what it did mean, but what it ought to mean.

And so, what comes with all of this sophistry? All sorts of rights that clearly did not exist at the time of the adoption of the Constitution and the Bill of Rights exist today. It's plain absolutely plain, that the right to an abortion was not thought to exist in 1791 or at the time that the post-Civil War amendments were adopted, since there were laws against abortions in all the states. It's absolutely plain that there was no right to die, since there were laws against suicide. And you can go right down the list.

This is not, I caution you, a Liberal versus Conservative issue. Conservatives are fully as prepared as Liberals to create new rights under this evolutionist theory of the Consti- tution.

During its 1995-1996 term, the Supreme Court created a big brand new right that the Liberals like, when it held in Rohmer vs. Evans (1996) that a state could not, by state constitutional amendment, prohibit its local subunits from providing special treatment on the basis of homosexuality. Liberals like that one.

But during the same term, in fact within weeks of it, I believe, the Court also said that there is a federal constitutional right, which my copy of the U.S. Constitution doesn't reflect, not to have an excessive jury verdict. We struck down excessive punitive dam- ages. Now there have been excessive jury verdicts for over 200 years. Nobody ever thought that it was a federal matter, that it violated the Federal Constitution. Punitive damages are no different in that respect from excessive compensatory damages.

So it's not Liberal/Conservative. It's the modernist view versus the traditional view of the Constitution. It should not be thought, although it is often argued, that this new way of looking at the Constitution is desirable because it promotes needed flexibility. That's the argument you sometimes hear. The argument is usually made in anthropomorphic terms, much like commentary on the part of people who talk about the stock market as resting for a new assault at the 4000 level. The modernists do the same thing with the Constitution. The argument is as follows:

    "The Constitution is meant for a living society. If it could not grow and evolve with the society, it would become brittle and snap. You have to provide the flexibility."

This is a very plausible argument. It sounds wonderful, until you start to think, "Now, wait a minute. What is the real motive of these people who want to chuck away the old, original constitution? Is it really flexibility that they're looking for?"

What was the situation before Roe vs. Wade (1973)? If you wanted a right to an abortion, you had to create that right the way a constitutional democratic society creates most rights. You had to pass a law providing for and protecting that right. If you didn't want it, you had to pass a law against it.

The same was true of capital punishment. Existing law authorized capital punishment. If you wanted to abolish it, you needed to get a change in the law.

Regarding capital punishment, I have sat with three colleagues on the Supreme Court who think that capital punishment is unconstitutional, even though the Constitution men- tions capital punishment. The due process clause--a clause you're all familiar with--pro- vides: "No person shall be deprived of life, liberty or property without due process of law..." What do you think the drafters of the clause were talking about? They were talk- ing about the death penalty. And elsewhere in the Constitution, it says you shall not be sentenced for a capital crime without a grand jury indictment. What do think the drafters were talking about? They were talking about the death penalty, clearly approved in the text of the Constitution.

For the constitutional evolutionist, or modernist, it doesn't matter what the text of the Constitution says. For the modernist, everyday is a new day. And so, the death penalty, which might have been constitutional in the past, may very well be unconstitutional to- day. Now does that produce flexibility? Under the original disposition, if you wanted to have the death penalty, you enacted a law authorizing it. If you didn't want it, you re- pealed the law authorizing it. That's flexibility.

So, these people who go around talking about the need for growing and bending are ut- tering nonsense. What these people want is to impose a view of things on the whole so- ciety from coast to coast, and it is most quickly and most effectively done through the Constitution. And the easiest and quickest way to get something into the Constitution is to get it done via judicial interpretation. Rather than go the slow, difficult, and trouble- some route of getting a constitutional amendment drafted, formally proposed and rati- fied, persuade the highest court in the land to interpret the Constitution so broadly and loosely as to enable it read the desired policy into the Constitution

Now, there's several vices to a non-originalist approach to the text of the Constitution. The first and most important difficulty with it pertains to the question of legitimacy. The Constitution of the United States nowhere says that the Supreme Court shall be the last word on what the Constitution means, or that the Supreme Court shall have the authority to disregard statutes enacted by the Congress of the United States on the ground that, in the Court's view, the statutes do not comport with the Constitution. It doesn't say that anywhere the Constitution. We made it up.

Now, we made it up very sensibly, because we reasoned that "a constitution is a law, sort of a super-law." This is what Marbury vs. Madison (1803) said. And determining what the law means is the job of courts. They have to do this all the time. They have to say what the law means

Courts frequently have to try to reconcile conflicting statutes, for example. In doing so, they have to interpret the statutes. If they cannot reconcile them, they simply say the more recent law prevails over the older law. And in the case of a "super-law" such as the Constitution, when the courts can't reconcile the law and the "super-law", the Constitu- tion prevails. And, said John Marshall in Marbury vs. Madison, "That's what courts do. It is assuredly the function of the courts to say what the law is." It's lawyer's work.

But what happens if that is not what the Constitution is, if it is not a text, like a statute, which means what it meant when it was passed? What happens if the Constitution is, rather, a sort of an empty bottle that contains the aspirations of the society, just all sorts of wonderful aspirations, the precise content of which is quite indeterminate? Today, the Eighth Amendment ban against "cruel and unusual punishment" may mean the death penalty is ok, but tomorrow it won't mean that. "Due process of law," whatever that means will vary over time, the due process clauses in the Fifth and Fourteenth Amend- ments meaning one thing today and something else tomorrow. We're so in love with these abstractions, and, in the future, the Supreme Court shall decree for us what these abstractions mean. Now, if that's what the Constitution is, sort of a list of aspirations, not a real law, then Marbury v. Madison is wrong.

I'm not very good at determinating what the aspirations of the American people are. I am out of touch with the American people. I don't even try to be in touch. People mention movie stars and I don't know who they're talking about, and I get a blank look on my face. If you want somebody who's in touch with what are the evolving standards of de- cency that reflect a maturing society, ask the Congress to make the relevant decisions.

And of course that's the way it's done in the United Kingdom. The Parliament says what the English Constitution consists of.

So, if you really believe in the evolving theory, and you're right about this, then we made a mistake in Marbury v. Madison, and the Supreme Court shouldn't stick its nose into this stuff at all. It should be up to the Congress to determine where we evolve. What makes you think a committee of nine lawyers ought to tell where we're evolving to? I'm a philosophy minor, but I didn't train as a philosopher. I'm just a lawyer, just be- tween you and me. That's what I'm really good at.

A second difficulty of the non-originalist approach is the lack of an objective standard to guide the courts in interpreting the Constitution and resolving constitutional controver- sies in cases brought before them for judgement and decision.

Originalism has a lot of problems. Itís not always easy to put into practice. Sometimes, it's very hard. Sometimes, it's awful hard to tell what the original meaning of the Consti- tution was. I'll acknowledge all of that. But the real problem is not whether it's the best thing in the world, but whether there's anything better. And what you have to ask the non-originalist law professor or whoever else is a non-originalist, "what do you pro- pose?" What does a judge consult, if not the original understanding of the text? What binds the biases of judge? What prevents the judge from simply implementing his own prejudices? What is the standard? And the fact is, I have never heard of a non-textual standard that had a snowball's chance in hell of ever being adopted by more than two people.

If not the original understanding of the text of the Constitution, what are you going to use as a standard? The philosophy of Plato? Natural law? The philosophy of John Raule? Public opinion polls? What do you want to use? If you don't take the words of the Con- stitution and what they were originally understood to mean, what is the standard? The answer is, there isn't any standard.

So, imagine a court that is confronted with a constitution believed to be an empty bottle, and imagine how a case must be decided. For example, whether there's a right to die. Now, if you come to me in my capacity as a lawyer, I can look up all the relevant cases, which will tell me that, until recently, assisted suicide was criminal in all the states. No- body thought that the state statutes criminalizing assisted suicide were unconstitutional. It was clearly understood there was no federal right to die. But if that doesn't matter, if every day is a new day, and we're talking about the evolving standards of decency of a maturing society, how does the court decide the case? There are no law books the judges on the court can consult.

You can imagine how the case must be decided: "Do you think there ought to be a right to die? How about you? Well, that's fine, there must be a right to die." So, the personal opinions and prejudices of the judges become the standard. What else are you going to use?

And, finally, I will mention the last deficiency of non-originalism. In the long run, non- originalism triumphant and rampant is the death knell of the Constitution. As I suggested earlier, the whole purpose of the Constitution is to prevent a future society from doing whatsoever it wants to do. To change, to evolve, you don't need a constitution. All you need is a legislature, as well as a ballot box. Things will change as fast as you want. You want to create new rights and/or destroy old ones? A legislature and the electoral fran- chise are all that you need. The only reason you need a constitution is because there are some things which you don't want a majority to be able to change.

That's my most important function as a judge in the American legal system. I have to tell the majority to take a hike. I tell them: "I don't care what you want. The Bill of Rights says you cannot do it."

Now, if there is no fixed absolute, if the Constitution evolves to mean what it ought to mean today, what makes you think the majority is going to leave it to judges to decide what the Constitution ought to mean? The people comprising the popular or legislative majority will do that only if they think the decisions of the courts will be supportive of their particular interests, values, and opinions. If there are no fixed legal standards, if the justices on the Supreme Court are supposed to tell us what are the evolving stand- ards of decency that reflect a maturing society, a majority of the people and its political leadership will look for judges who agree with the majority as to what the Constitution means. And so we will have the absolutely crazy system in which we conduct a mini- plebiscite on the meaning of the Constitution every time we select a person to fill a vacancy on the Supreme Court.

Isn't that what's already happening? Does it make any sense?

I suggest that is the inevitable result a nation gets, when it abandons constitutional originalism and moves to a constitution that means what it ought to mean. The people are going to decide what the Constitution ought to mean. A technical legal question will not be left to lawyers and judges, if the question is simply should it be a denial of equal pro- tection, not is it a denial of equal protection. If the question is should it be a denial of equal protection for women not to have the vote, the people are not going to let a com- mittee of nine lawyers and judges decide that question. They're going to choose the per-sons who serve on the committee and vote in its decisions, and they're going choose persons who agree with them.

So, at the end of this long process, this great evolution from stuffy old originalism to an evolutionary constitution, we arrive at the point where the meaning of the Constitution, the most important part of the Constitution, the Bill of Rights, is decided upon by the very body that the Bill of Rights is supposed to protect you as an individual against-- namely, the majority.

That seems to me the inevitable demonstration that the only sensible way to construe a constitution is the way you construe statutes. What did its words mean when they were adopted? I think we depart from the traditional view of the Constitution at our own risk.

Unfortunately, we've affected the world with this novel view of the Constitution. Many European countries envy the United States Supreme Court because of its wonderful power to create rights that ought to exist and eliminate rights that ought not to exist.

I suggest this is a very new enterprise. We've only been doing it for forty years. We haven't lasted for 200 years doing it. And we haven't gone far down the road. I think that, at the end of the road, there is really a serious weakening of constitutional democracy.

U.S. Constitutional Law & Political Philosophy

Legal Issues, Lawyers, & America's Judiciary

Associate Justice Antonin Scalia presented the foregoing statement as a speech at the Catholic University of America on October 18, 1996.

Antonin Scalia has served on the U.S. Supreme Court since September 26, 1986, after having been nominated by President Ronald W. Reagan for appointment to the high court and his appointment having been confirmed by the U.S. Senate. From 1982 to 1986, Scalia served on the U.S. Court of Appeals for the District of Columbia. He served as Professor of Law at the University of Virginia (1967-1974), Scholar in Residence at the American Enterprise Institute (1977), Visiting Professor of Law at Georgetown Universi- ty (1977), and Professor of Law at the University of Chicago (1977-1982). He received his LL.B. degree from Harvard University in 1960. He was admitted to the Ohio Bar in 1962 and the Virginia Bar in 1970.

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An Online Journal of Political Commentary & Analysis

Dr. Almon Leroy Way, Jr., Editor

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Conservative Government Ensures a Nation's Strength, Progress, & Prosperity