Strict Constuctionist

The words above are used to describe Supreme Court Justice Antonin Scalia, though he doesn't like it much. Nevertheless his speech on C-Span which I watch Monday was very interesting. Let me try and do a decent recap.

First Justice Scalia notes that an evolution has taken place in the way we view the constitution. It used to be that everyone was an originalist -- that is they looked at what the constitution meant when it was written for guidance on how to apply it in specific cases. For example "free speech" as protected under the first amendment didn't include all or any speech, what it did mean was primarily political speech. Liable and public decency laws were still on the books way back then, when the amendment was written. But that doesn't stop Justices today from making the first amendment mean anything and everything that it never was intended to mean, allowing flag burning and simulated internet child pornography but regulating campaign finances.

This is made possible because today most people view the constitution as a "living document." But that wasn't always the case. In fact it used to be that when the justices wanted to "legislate" they would try and convolute the original meaning of the constitution, or as Scalia put it "they did it the old fashioned way, they lied." Today, those justices who legislate from the bench don't even bother. They simply justify their decision based on whatever they think the constitutions meaning has evolved to. Coincidentally that meaning is usually in agreement with the justices own personal politics. Scalia makes the point thusly: "I put this question to the faculty all the time, or incite the students to ask their living constitutional professors. 'OK professor, you are not an originality, what is your criterion?' There is none other."

The "living Constitution" theory, Scalia argues, is really the death of the constitution. Justices no longer judge cases based on the law but based upon their own senses of justice. But if a lawyer isn't going to look at the legal history, and original meaning of the law what good is he? Certainly, Scalia contends, his values (and implicitly anyone else's values on the Supreme Court) are no great bellwether for the values of the population at large. For an interpretation of the values of the people we should turn to the legislators, that is what they are elected to do.

When I began writing this, I though no one had noticed the speech, but it turns out Powerline did, and you can read the full text of Scalia's speech here.