Washington Center


Scalia challenges notion of Constitution as “Living”
Provocative Talk to UC Students in Washington

California News Service

Washington -- Supreme Court Justice Antonin Scalia told UC students that the Constitution is not a living document to be reinterpreted with every new generation, but a rigid set of rules which can be amended by lawmakers or citizens as society evolves.

 “It’s not a living constitution, it’s a dead constitution. The constitution is not a living organism, the constitution is the law,’’ Scalia told students at the UC Washington Center Monday. 

Scalia, the far-right and famously outspoken Justice addressed the largely liberal students living in the University of California’s Washington Center on Monday.

He outlined his judicial philosophy and explained his trademark “originalism’’ as understanding the constitution as it was meant to be understood when it was written.

Undergraduates, including students from nine UC schools challenged Scalia’s conservative positions, displaying a respectful mixture of political questioning and political celebrity awe.

“The reason the founders adopted a constitution and a bill of rights is that they feared that future generations would not be as wise or as virtuous as they were,” Scalia said. “So they laid down some rigid rules, and to give those rigid rules whatever meaning the current society wants is to destroy the constitution.”

The Judicial Branch was subject to some self-ridicule. The Justice insisted that the Supreme Court – currently comprised of nine Harvard and Yale alumni -- has no right to determine morality or compromise laws for the sake of that morality.

“In the light of the evolving standards of decency,” Scalia joked sarcastically, “somehow we at the Supreme Court, we Harvard and Yale lawyers, we somehow can perceive these evolving standards of decency because we learned all this stuff at Harvard Law School.”

“Originalism,” is a judicial philosophy which holds that the Constitution should be read and understood as it was initially intended. When society evolves, new laws or Constitutional Amendments can be adopted, rather than having judges reinterpret the original text.

 “I don’t know how anyone would not be an originalist,” Scalia said. “When we read Shakespeare, they have a glossary so [we] can see what was meant when it was written.”

Scalia said that this same philosophy should be attributed to statutes. Concerning those who say that the constitution is a living and changing organism, he was scornful.

“That’s rather Pollyann-ish,” he said.

Jess Bravin, the Wall Street Journal’s Supreme Court correspondent led the question-and-answer session which followed Scalia’s talk. Though he told students that the Justice would not answer questions about current cases, Scalia elaborated on his skepticism over the Constitutionality of the Voting Rights Act, an issue that will be decided by the court this session.

The students challenged Scalia’s “originalism’’ which he uses to justify his opposition to Roe v. Wade among other social issues. The Justice was humorous at times, insisting that a fourth-year UC Irvine student stand when she addressed him, for politeness’ sake.

 “It’s respectful,’ he said to laughter.

When a third-year University of Pennsylvania student asked how he reconciles his “originalism” with new technologies, he noted that she was reading her question from an iphone.

Scalia said “originalism’’ doesn’t prevent courts from applying principles to new phenomenon.

“How does it apply to television? How does it apply to the internet? You take the rules that you apply to face-to-face speech and you apply it to those other technologies,” Scalia said. “What I’m talking about is giving the Constitution’s application to extant phenomenon that existed at the time.”

A third-year student from UC San Diego followed the response by pointing out that when the 14th amendment was passed in the 1800s, the word “homosexual” did not yet exist..

“In the century afterward,” she said, “I think you could argue that a new phenomenon developed of same-sex couples demanding the same rights as mixed-sex couples.”

The Justice was dismissive, pointing out that homosexuality is not a “new technological phenomena.”

“Maybe people didn’t come forward and demand a Constitutional right to homosexual marriage before, but that’s not a new phenomena in the sense of a reality that the constitution has to take account of,” Scalia said. “There was homosexuality at the time of the 14th amendment. Every state had laws against it.”

Scalia opened his speech by asking himself what he could say to beneficially address a group of undergraduates. Ultimately, he began with the Constitution.

“I expect if I asked the law students, or for that matter, if I asked lawyers, what it is that makes the United States the freest country in the world, the answer would probably be freedom of speech, freedom of the press, freedom of religion and so forth,” Scalia said. “I want you to think about that. Do you really think that the Bill of Rights is what makes us different?”

Scalia claimed that every “tin-horn” dictator in the world has a bill of rights, and every banana republic and presidents for life have bills of rights too.

“It’s cost free,” he said. “In fact, most of those bills of rights are much better than ours, because they never intended to apply them!”

Scalia said that the founding fathers were more concerned with structure and with ensuring that each governmental branch would be equally powerful.

Despite the political differences between the Justice and the audience, there was an impressive sense of respect among the audience.

“I was really proud of the UCDC program,” said Janou Gordon, the UCDC events manager. “It did not seem partisan at all. I think there was a just a lot of respect and excitement that someone very important was coming to speak. It seemed to me like [people] were putting aside their political animosity. They were just interested in hearing from him.”

UC Washington Center holds a forum every Monday night, with speakers ranging from Scalia to Ralph Nader. Last year Supreme Court Justice Stephen Breyer spoke, and next fall Justice Anthony Kennedy is expected.

 “[There’s] no secret to booking Justice Scalia,” Bravin said. “I sent him a letter inviting him to speak at UCDC, and he said yes.”

According to Gordon, the Monday Night Center Forums usually gather about 100 students, but approximately 200 arrived to see Scalia.

The California News Service is a journalism project of the University of California Washington Center. Contact the California News Service at cns@ucdc.edu