and with those words justice antonin scalia opened his speech (lecture?) at the university of central missouri last night. already some 1200+ miles away (in the atlanta airport waiting for the flight that will take me to my friend in new jersey) and the wisdom he imparted is still with me...
justice scalia has long been on my 'most favorite people' list - i rank him right up there with james madison, thomas jefferson, teddy roosevelt, ronald reagan and william buckley (just to name a few). when president reagan appointed him to the federal appeals court is when scalia first popped on my radar.
i was still [mostly] in southern maryland at that point in my life and was well in tune to the happenings in d.c. long before anything [other than the presidential elections] on the national scene caught my attention. heck, it was 1982 and i hadn't even voted in a presidential election yet!
any how, back to last night. through a contact of dee's she was able to get highly unavailable tickets for herself, two personal friends of her and me. her first take on the whole evening is posted here and i'll try real hard to not rehash what she has written - or will write tomorrow - or the next day.
nearly 72 years on this earth (and nearly 50 years of marriage to the same woman) have shaped justice scalia into what he presented last night. i wonder, when he came from what most would think to be the most liberal of liberal areas (new york city) in this country, why he became known as one of the most conservative judges to make up the supremes.
there doesn't seem to be anything really 'telling' in his background that i can see. he has started life as the son of an immigrant who attended a jesuit high school in queens, went on to georgetown university, switzerland's university of fribourg, and ending his education with the magna cum laude graduation from harvard law school in the spring of 1960.
from there he went on to work as a practicing attorney in ohio and a law professor at another of the seven sisters (university of virginia) before entering public service during the nixon administration. after ford and until reagan he went back to teaching law - at the university of chicago, georgetown and stanford.
justice antonin scalia is a constitutional constructionist - or an originalist as he refers to himself. i have long maintained that one of that ilk (of which i count myself one) is neither conservative nor liberal as a matter of course and i was thrilled to hear justice scalia give voice to that same sentiment. another thing i have in common with the esteemed justice is that we are both social conservatives - i know, who would have believed that?!?!
but let's go back to the why of it, shall we?
currently EVERYONE discusses activist judges and EVERYONE believes that they are the bane of our society. only thing is, both sides have a differing viewpoint as to what and activist judge is.
those who believe in a "living constitution" think that originalists are the activist judges because they want to interpret the constitution in a fashion limited by what it says - or the dead constitution, as justice scalia called it. originalists believe that anyone who rules on constitutional issues with the idea that constitution means whatever they want it to mean today rather than on what it (and the supporting documentation for the constitution) SAYS is an activist judge.
seems to me that the latter, rather than the former, definition is more accurate. how can you be an activist if you are using the constitution as written. how can you be an activist if you're NOT trying to change anything in the constitution?!? how can you be an activist if you're not trying to legislate from the bench but rather only rule on those things that apply to the constitution (or is it to which the constitution applies?)?
during the course of his speech, scalia said that when he was coming up through the system, growing up and even before, the norm was that most everyone was a constructionist. he stated that it wasn't until the warren led supremes (1953-1969) when the tide started turning and the supremes started down the merry path of creating the living constitution. and based on what i know about u.s. history, i'd have to say that his viewpoint is an accurate one - big shocker there!!!
in talking with my friends on the left they often comment that the u.s. constitution MUST be a living document in order to make it flexible to the changes that happen as mankind evolves. i have long wrestled with an appropriate response to that argument and, thankfully, justice scalia handed one to those of us in attendance last night.
he put for the the notion that the u.s. constitution, as written, offers our citizens the MOST flexible of scenarios imaginable. further, he reminded all of us that it is the final word on what is to be the "law of the land". further, that no matter how stupid somethings are, they just aren't in the province of the constitution (he even joked that he wanted a stamp & ink pad that says "STUPID BUT CONSTITUTIONAL").
as for being flexible he offered the following arguments:
you think abortion should be legal? then get all of your fellow state citizens to agree with you and pass a law to ensure that it's legal. don't think it should be legal and it is? convince your fellow state citizens to agree with you and repeal the law in place. same thing goes for the death penalty - the supremes have no business ruling on either of these items; i agree.
james staab wrote a great book, The Political Thought of Justice Antonin Scalia: A Hamiltonian on the Supreme Court that i recently read. it's a great read even if i'm not sure i agree with all of staab's conclusions - to me scalia is more like thomas jefferson in that he believes in social conservatism (or liberalism in jefferson's day) so long as it "doesn't contradict the words the words in the constitution."
often times, justice scalia has gone with the side that is thought of as the "liberal reading" of the constitution; he hasn't gone "liberal" he is simply acting in concert with the words of the constitution. he has angered social conservatives with some of his votes - he mentioned flag burning (he vote it was allowed under the first amendment), for the confrontation clause (under the 4th amendment) and some others, that i can't remember right now.
all in all, i sit in awe of this man who thinks so fast on his feet, but makes no decisions without considering the full weight of the constitution and the tradition and history that surround the original words. i think the most important thing he said last night (and i paraphrase here) was that it is important to remember that those who believe in the living constitution seek not only to ADD rights but in some cases to remove them as well...