Justice Scalia on Interpreting the Constitution

I watched the very long video in which Scalia spoke of interpreting the U.S. Constitution (Constitution) These are my notes:

The due process clause in the Constitution provides that no person shall be deprived of life, liberty or property without “due process”. It does not mean rights are absolute. A fundamental right used to be one that is rooted in the traditions of the American people. Ultimately “fundamental rights” no longer have to be “rooted in tradition”. For example, “abortion” which is now considered to be a fundamental right was not only not rooted in tradition but it was once a criminal act. The same holds true for the “right” of homosexual sodomy, which was also at one time a criminal act. What these examples show is that the court has essentially liberated itself from the Constitution. The courts are no longer protecting the traditions of the American people. To create rights that cannot be limited the court created “substantive due process”. According to substantive due process certain “fundamental” rights are so important that no due process is sufficient to take them away. What rights are they? According to Justice Scalia “The court will tell you”. But abortion is now such a right that it cannot be denied.

The argument that the Constitution is a living organism is intoxicating. It must grow with the times or become brittle and die. Justice Scalia’s understanding of the Constitution makes it very flexible. If change is what people want, then adopt it into the constitution by amendment. The debate over whether the Constitution is living or not is often considered to be one between liberals and conservatives. It is a false narrative. Conservatives are willing to “grow” the Constitution by amendment.

Some years ago, the state of Colorado enacted an amendment to their constitution which prohibited adding to the list prohibiting discrimination. The result was that “sexual preference” could not be added to the list. The Supreme Court held that the Colorado amendment was unconstitutional. On the same day, the Court decided a case against BMW where the Plaintiff had been awarded $200 in damages and $2 million in punitive damages. The court held that the award of punitive damages violated the U.S. Constitution. In both cases the court did not rely upon any provision of the Bill of Rights. The first case was applauded by liberals and in the case of BMW the conservatives were pleased. Judge Scalia dissented in both cases. He could find no authority in the U.S. Constitution which would have supported either decision.

To think that a “living” Constitution will grant more and more freedom is a mistake. Actually, some freedoms have been taken away. The confrontation clause, which is very clear. requires a witness in a criminal case to take the stand and be subject to cross examination. But a “living” court decided that its prior decision was wrong and that forevermore hearsay, which is not subject to cross examination, is admissible as long as the hearsay “bears an indicium of reliability”, that decision was subsequently overturned. We have seen if the Constitution is a living document its meaning changes depending upon the composition of the Supreme Court, and due process can mean whatever the court decides at any particular time. Returning two centuries of established law, the two originalists on the Supreme Court argued that the only indicia of reliability is when the witness is “confronted” and subject to cross examination.

We have seen that rights have been eliminated by courts who hold that the Constitution is a living document. The right of confrontation being one and another being the right to a jury trial. Two originalists on the court reversed an earlier decision by living constitution proponents. Sentencing a criminal defendant had traditionally been based on facts determined by a jury in the process of a criminal trial. A living court had decided that a judge could decide if a defendant convicted of robbery should be given ten additional years for the use of a gun during the robbery. The judge did not have to apply the “beyond a reasonable doubt” standard, instead he could apply the civil case standard of “preponderance of the evidence” which is a lower threshold. The two originalists on the High Court reversed the earlier court decision to restore the defendant’s right to a jury trial in a criminal case.

The point that Justice Scalia was making is that originalists on the court will guarantee what rights the language of the Constitution provides, and since the language of the Constitution does not change neither do the guarantees. On the other hand, the rights one might enjoy according to judges and justices who view the constitution as a living document is whatever the majority might decide on a certain day under the circumstance of the case before them. If the Constitution is a living document there are no fixed guarantees that apply to all cases for all times.

The Constitution does not grant the Supreme Court authority to decide what laws violate the Constitution, but obviously if there is a conflict judges are the ones who must decide. Chief Justice Marshall in a very early case decided that the Supreme Court would have the final say unless the constitution were amended. Justice Marshall believed that when a conflict occurs the Constitution prevails. If judges are to decide if the Constitution or the Statute shall prevail then we do not have a constitutional form of government, we are to be governed by nine men who from time to time sit on the Supreme Court.

Proponents of the living Constitution say that it should reflect evolving standards of decency. Nine people who sit on the Supreme Court are not apt to know what are the “evolving standards of decency”. Legislatures are better equipped at that task. That being the case, Justice Scalia argues, whatever laws are passed should be constitutional. He concludes that a living document is incompatible with the legal system that the Constitution has established.

Being a non-originalist is not enough. There must be an alternate standard if the original meaning of the Constitution is not to govern us. If the Constitution is the standard then we should have very good lawyers sitting on the courts. If not then we should have lawyers who need not be highly schooled in the law, they should simply agree with the majority. We should pick the kind of people who will rewrite the Constitution that we would want. People say, “We want moderate judges”, Justice Scalia asks, “What is a moderate interpretation of a text?” Does “moderate” mean “Half-way between what it really means and what you would like it to mean?” The only way “moderate” has any meaning is for the legislature to write a moderate law.

Justice Scalia concludes that we have arrived at a point where we want to appoint Justices to write a constitution that we desire rather than uphold the text of the Constitution we have now. The nomination process demonstrates that when a senator questions a nominee the senator asks if the nominee will agree with the senator’s interpretation of what the Constitution says, and if the nominee does not agree, then he is not acceptable. This process renders the Constitution useless, because the Constitution will then mean what the senator’s constituents want it to mean. Justice Scalia refers to the senator’s constituents as the “majority”, but it is often suggested that senators are more influenced by special interest groups who finance their campaigns.

The Bill of Rights is designed to protect us against the majority, according to Justice Scalia; and the job of a Justice is to tell the majority to “Take a walk.” If Judges are to decide according to what the majority desires, it is the destruction of what we have had for more than two-hundred years. The idea of a “living constitution” is barely 50 years old, and should be troublesome to Americans.

Great post.

From ArticleVBlog: Justice v. Social Justice Part II:

"Our Leftist scotus masterfully discarded the Natural Rights theory of our Founding and replaced it with social justice by redefining the concept of rights. Scotus recognizes two categories of rights, those that are fundamental, and those not so important called liberty interests. If this sounds like an arbitrary hierarchy determined by scotus, it is. Unsurprisingly, our progressive scotus doesn’t find the preservation of society, religious freedom, freedom of association, and the right to life as fundamental. They are liberty interests, and as such, they may be violated if the lawmaking body can show a simple rational basis for curtailment."

The due process clause in the Constitution provides that no person shall be deprived of life, liberty or property without “due process”. It does not mean rights are absolute.

I appreciated Scalia's disdain for the various multi-pronged tests that courts used to "balance" rights, and then do whatever they wanted. I disagree that there are rights which can't constitutionally be abridged by the government regardless how much process was given by the government. The Second Amendment comes to mind. The history of the Bill of Rights has been government abridging rights, while courts frequently invent legal fictions to justify the lost rights.

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