Supreme Court Justice Antonin Scalia delivered the USC Gould School of Law’s Justice Lester W. Roth Lecture on April 10, using the opportunity to extoll the virtues of originalism and to discredit the concept of “the living Constitution.”
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| Justice Antonin Scalia delivers the Roth Lecture |
Addressing an audience of more than 500 USC Law students, alumni, faculty and staff, Scalia said he believes in adhering to the text of the Constitution.
“I do find it peculiar when people ask, ‘When did you first become an originalist?’” he said. “It seems to me a perfectly natural way to look at texts. The words in the Constitution have the meaning they had at the time they were written.”
Scalia likened his reading of the Constitution to the manner in which we approach the works of Shakespeare: with a glossary that reveals the 16th- and 17th-century meanings of words commonly used today.
He took particular umbrage with the argument that the Constitution must draw meaning from “evolving standards of decency which mark the maturing of society,” a reference to a 1958 Supreme Court ruling in Trop v. Dulles. Scalia said the framers did not share this view, which he mocked as “Pollyannaish.”
“The founders wanted to enshrine values in the Constitution so future generations couldn’t change it,” he said. “Defenders say it has to grow with the society it governs, but I consider it a ‘super statute’: it says what it says and doesn’t say what it doesn’t say. If it were a ‘living document,’ it wouldn’t be worth anything.”
Many issues that come before the Supreme Court are best left to the people to decide through their representatives in state legislatures and Congress, Scalia said. As an example, he said the death penalty was never prohibited by the American people, so if you want to abolish it or make some other change, “you need a legislature and a ballot box.”
Scalia also said that opponents of originalism claim it’s a doctrine that he and “his conservative buddies” are trying to foist on society. Contrary to popular perception, using originalism as your guide can aid both conservative and liberal causes, he said, citing a case where he led the fight for the right to trial by jury.
“Another argument made in favor of the living Constitution is that it will always lead to greater freedom,” he said. “It’s a two-way street – it will not always lead to greater freedom. Under the living Constitution, both sides want to write what they think into the Constitution.”
Scalia questioned the wisdom of having the Supreme Court rule at all on some divisive issues.
“Why would you want nine lawyers to decide on issues like abortion and assisted suicide?” he said. “We don’t learn about that in law school.”
Ultimately, originalism is the only theory that produces criteria to which judges can be held, Scalia said, calling it “the only game in town.
“The Constitution doesn’t mean anything if it means what the majority wants it to mean.”
Scalia also lamented how politicized the Supreme Court appointment process has become, saying that each review has become a “mini-Constitutional convention.”
“The test used to be whether you were a good lawyer,” he said, noting that, despite perceptions of his political inclinations, he was confirmed 98-0, with two Senators absent. “What has changed? It used to be a matter of your legal ability, demeanor, fairness.”
After his lecture, Scalia fielded questions from the audience. When asked how the Supreme Court deals with legislative intent, Scalia said he cares only about meaning, not intent. To a question about determining what is “cruel and unusual punishment” today, Scalia said he compares punishments allowed at the time the Constitution was ratified—such as death by hanging—and asks if a new form of punishment or execution is more cruel and unusual.
“How the Constitution applies to new things is determined by how it applies to older things,” Scalia said. In choosing between a given example of a murderer forced to watch a video of his crime for two hours every day or being hanged, Scalia quipped, “Which would you prefer?”
After the lecture, students and alumni attended a reception in Crocker Plaza.
“I expected not to like the guy at all, but I thought he was great, he was very logical, very personable, very likeable,” Ryan Evans ’13 said. “His perspective has the appeal of being simple and solid, where the living Constitution tends to go with the majority’s opinion, which in our political climate is not necessarily the best for everybody.”
Shehzad Huda ’12 said it was beneficial to hear Justice Scalia explain originalism in “layman’s terms.”
“He swayed me,” Huda said. “I think I agree with him. I think it’s a more logical approach from the other approaches.”
David Ciarlo ’13 said that whether or not you agree with Scalia, he defended originalism well.
“His originalism interpretation is interesting because there’s a concern that with nine justices on the court, their political persuasion could change in the next five years or 10 or 20 years, and all these rights the left-wing has progressively moved toward could be obliterated in one fell swoop,” he said. “If you look at what the original meaning was, you can’t as easily manipulate what the Constitution is supposed to be today.”
Photos by Mikel Healey
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