The Originalist (Interview with Antonin Scalia)

Last October marked the 24th anniversary of Justice Antonin Scalia's appointment to the U.S. Supreme Court. Well known for his sharp wit as well as his originalist approach to the Constitution, Justice Scalia consistently asks more questions during oral arguments and makes more comments than any other Supreme Court justice. And according to one study, he also gets the most laughs from those who come to watch these arguments. In September Justice Scalia spoke with UC Hastings law professor Calvin Massey.

Q. How would you characterize the role of the Supreme Court in American society, now that you've been a part of it for 24 years?
I think it's a highly respected institution. It was when I came, and I don't think I've destroyed it. I've been impressed that even when we come out with opinions that are highly unpopular or even highly—what should I say—emotion raising, the people accept them, as they should. The one that comes most to mind is the election case of Bush v. Gore. Nobody on the Court liked to wade into that controversy. But there was certainly no way that we could turn down the petition for certiorari. What are you going to say? The case isn't important enough? And I think that the public ultimately realized that we had to take the case. ... I was very, very proud of the way the Court's reputation survived that, even though there are a lot of people who are probably still mad about it.

You believe in an enduring constitution rather than an evolving constitution. What does that mean to you?

In its most important aspects, the Constitution tells the current society that it cannot do [whatever] it wants to do. It is a decision that the society has made that in order to take certain actions, you need the extraordinary effort that it takes to amend the Constitution. Now if you give to those many provisions of the Constitution that are necessarily broad—such as due process of law, cruel and unusual punishments, equal protection of the laws—if you give them an evolving meaning so that they have whatever meaning the current society thinks they ought to have, they are no limitation on the current society at all. If the cruel and unusual punishments clause simply means that today's society should not do anything that it considers cruel and unusual, it means nothing except, "To thine own self be true."

In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don't think anybody would have thought that equal protection applied to sex discrimination, or certainly not to sexual orientation. So does that mean that we've gone off in error by applying the 14th Amendment to both?
Yes, yes. Sorry, to tell you that. ... But, you know, if indeed the current society has come to different views, that's fine. You do not need the Constitution to reflect the wishes of the current society. Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn't. Nobody ever thought that that's what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don't need a constitution to keep things up-to-date. All you need is a legislature and a ballot box. You don't like the death penalty anymore, that's fine. You want a right to abortion? There's nothing in the Constitution about that. But that doesn't mean you cannot prohibit it. Persuade your fellow citizens it's a good idea and pass a law. That's what democracy is all about. It's not about nine superannuated judges who have been there too long, imposing these demands on society.

What do you do when the original meaning of a constitutional provision is either in doubt or is unknown?

I do not pretend that originalism is perfect. There are some questions you have no easy answer to, and you have to take your best shot. ... We don't have the answer to everything, but by God we have an answer to a lot of stuff ... especially the most controversial: whether the death penalty is unconstitutional, whether there's a constitutional right to abortion, to suicide, and I could go on. All the most controversial stuff. ... I don't even have to read the briefs, for Pete's sake.

Should we ever pay attention to lawyers' work product when it comes to constitutional decisions in foreign countries?
[Laughs.] Well, it depends. If you're an originalist, of course not. What can France's modern attitude toward the French constitution have to say about what the framers of the American Constitution meant? [But] if you're an evolutionist, the world is your oyster.

You've sometimes expressed thoughts about the culture in which we live. For example, in Lee v. Weisman you wrote that we indeed live in a vulgar age. What do you think accounts for our present civic vulgarity?
Gee, I don't know. I occasionally watch movies or television shows in which the f-word is used constantly, not by the criminal class but by supposedly elegant, well-educated, well-to-do people. The society I move in doesn't behave that way. Who imagines this? Maybe here in California. I don't know, you guys really talk this way?

You more or less grew up in New York. Being a child of Sicilian immigrants, how do you think New York City pizza rates?
I think it is infinitely better than Washington pizza, and infinitely better than Chicago pizza. You know these deep-dish pizzas—it's not pizza. It's very good, but ... call it tomato pie or something. ... I'm a traditionalist, what can I tell you?

Well known for his sharp wit as well as his originalist approach to the Constitution, Justice Scalia consistently asks more questions during oral arguments and makes more comments than any other Supreme Court justice.

And on the other hand we have ...

He's certainly not an originalist when it comes to the Commerce Clause. He fully embraced the expansive Wickard decision:

...the authority to enact laws necessary and proper for the regulation of interstate commerce is not limited to laws governing intrastate activities that substantially affect interstate commerce. Where necessary to make a regulation of interstate commerce effective, Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce.

Justice Scalia, concurring in Raich

I have a lot of respect for Scalia, but his comments in this interview about the Supreme Court's role in Bush v. Gore point to one key point where I disagree with him.

I have long felt that the U.S. Supreme Court made the wrong decision in that case. Not because I think the "wrong" candidate won the election, but that the Supreme Court had no business getting involved in that case at all. As an originalist, Scalia should have known better than anyone else on the Court that the Constitutional process for electing the President of the United States (a process in which the judicial branch of the U.S. government has no role) should have been followed.

I'm not so sure he was wrong on that point, though I don't know the details of the case in question. I can think of a perfect example of a situation where intrastate commerce is regulated by necessity in order to effectively regulate interstate commerce. The example I'm thinking of involves a mass transit agency in the Northeast that is a state-chartered agency and operates a combination of local and interstate bus routes in a major metropolitan area. The agency's "domestic" buses have to meet the same USDOT regulatory requirements, and their drivers have to meet the same ICC licensing requirements, as the buses that operate interstate routes. The same holds true for their rail service. They operate a combination of intrastate and interstate routes, but all of the agency's railroad assets are subject to regulation under the Federal Railroad Administration.

I'm not so sure he was wrong on that point, though I don't know the details of the case in question.

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It was a full-throated embrace of Wickard. Do you think that is in keeping with the original understanding of the Commerce Clause?

As to the example you gave, a similar case was addressed by the Marshall Court in Gibbons v Ogden (1824).¹

In his Raich dissent, Clarence Thomas explained why Gibbons is consistent with originalism, and why Wickard is not.²

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¹http://press-pubs.uchicago.edu/founders/documents/a1_8_3_commerces16.html

²http://www.law.cornell.edu/supct/html/03-1454.ZD1.html

Correction. Justice Thomas discusses the Gibbons v Ogden case in United States v Lopez, not Raich. Here is the URL to his opinion in Lopez:

http://www.law.cornell.edu/supct/html/93-1260.ZC1.html

The Necessary and Proper Clause has always been, even in the Constitutional Convention and certainly in the Federalist Papers, a point of controversy.

The basic argument in 1789 and today is “If the National Government is limited to enumerated powers, why does it need a Necessary and Proper Clause? Can’t it just be assumed?” To which the response is, “The N&P Clause enables the means of to carry out the enumerated powers.” Unfortunately our USSC has always deferred to the other branches to determine what is a means and what is an end. If they weren’t individually deferential on that issue, they never would have been nominated by a President nor confirmed by a Senate.

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