Scalia Misquoted On Brown v. Board Of Education (CORRECTED)

CORRECTION: An item posted here -- reporting that Supreme Court Justice Antonin Scalia said that if he were on the court in 1954, he would have dissented in the landmark Brown vs. Board of Education decision that ended school segregation based on race -- was incorrect.

The original report, in Phoenix's East Valley Tribune has been changed.

Yale Law School Professor and blogger Jack Balkin writes: "Here is the video of the event:

"At 23:45 Justice Scalia.... says that he stands with Justice Harlan, who dissented in Plessy v. Ferguson. He argues that the original meaning of the Fourteenth Amendment prohibits racial discrimination."

Watch Scalia comment:

Here is our original, incorrect report: * * * * *

In an appearance at the University of Arizona College of Law, Supreme Court Justice Antonin Scalia said that if he were on the court in 1954, he would have dissented in the landmark Brown vs. Board of Education decision that ended school segregation based on race.

Appearing on stage with Justice Stephen Breyer, Scalia cautioned against "inventing new rights nobody ever thought existed." Scalia said he advocates an "originalist" approach to the Constitution, warning against an "evolutionary" legal philosophy that he described as, "close your eyes and decide what you think is a good idea.''

Phoenix's East Valley Tribune reported (via Taegan Goddard's Political Wire):

Using his "originalist'' philosophy, Scalia said he likely would have dissented from the historic 1954 Brown v. Board of Education decision that declared school segregation illegal and struck down the system of "separate but equal'' public schools. He said that decision, which overturned earlier precedent, was designed to provide an approach the majority liked better.

"I will stipulate that it will,'' Scalia said. But he said that doesn't make it right. "Kings can do some stuff, some good stuff, that a democratic society could never do,'' he continued.

"Hitler developed a wonderful automobile,'' Scalia said. "What does that prove?''

"The only thing you can be sure of is the Constitution will mean whatever the American people want it to mean today,'' Scalia said. "And that's not what a Constitution is for. The whole purpose of a constitution is to constrain the desires of the current society.''

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Comments

[slarabee]

Wow the error on this story was huge and the correction should have been put on the main page at the top in bold.

I am shocked that no one double checked the video before this was posted here.

[Radical Pirate]

Scalia claims to be an originalist, but his interpretation that "The whole purpose of a constitution is to constrain the desires of the current society." does not come from the text. The Constitution includes a preamble, which sets out the true purpose of the document:

"We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America."

Nothing there about constraining the desires of the current society. Scalia is no originalist - he is a puritan authoritarian.

[BobSacomano]

I look forward to seeing this mistake on Beck, O'Reilly, and Hannity tonight. They're gonna play this up, big time.

[AlysonStern]

And why shouldn't they play it up? This so makes up for the plethora of repugnant views that Scalia has - I hope they never shut up about it.

[Mike Sprinkel]

It is deeply disturbing that the Huffington Post printed the original article. There is no doubt in my mind that whomever originally wrote the story committed libel. There is absolutely no basis in truth whatsoever for its assertion, and furthermore, there is a video of Scalia's speech in question. Now, many people will assume that Justice Scalia is pro segregation. Retractions simply do not undue the damage. This was reckless and irresponsible.

[AlysonStern]

HF has been slowly turning into the National Enquirer hasn't it. Inflammatory headlines that have NOTHING to do with the story within. They are as lazy as the mainstream media.

[GO-BAMA]

Correction: they are the mainstream media.

[Lowell Johnson]

Seems that a lot of prominent people are starting to show their true colors these days, especially Glenn Beck on FOX Noise last night, having a rant about everyone in the Obama Administration being "Marxist," which is interesting coming from a fascist.

[Mike Sprinkel]

I am very confused right now. Many of these comments, posted AFTER the correction condemn Justice Scalia. So, by implication, all of the commenters stand with the majority in Plessy v. Ferguson (the case that held "separate but equal" was okay per the 14th Amendment).

I suppose racism is still alive in well in this country, geez.

[desertdweller]

"Justice" Scalia is a hired gun in the employ of the Conservative establishment. He now has a posse consisting of Alito and Roberts, and a sidekick named Thomas.

[charon]

Scalia is a liar, but that's nothing new. He claims that the majority decision in the Brown decision was "originalist," as he is, thereby suggesting that the "evolutionary" position he counterposed to his own position, would have supported segregation. That is rubbish and Scalia knows it.

Fact is, Plessy was not about segregation per se, but mainly about states' rights to determine what constituted "separate but equal." It was always "states' rights" that supporters of Plessy on the court cited during its reign, which is based on the 10th Amendment in the Bill of Rights of the Constitution, that claimed that all rights not enumerated in the Constitution as belonging to the Federal Government, belonged to the states. Plessy supporters claimed to be "strict constructionists" who were literally interpreting the Constitution, and accused opponents of making up rights that didn't exist in the Constitution.

Plessy held that while equality of citizens under the law was mandated, integration was not, so as long as equal facilities were available, there was nothing wrong with segregated schools, bathrooms, train cars, etc. The determination of what was "equal" was very spongy, especially as interpreted in state courts, to allow vastly inferior facilities for one group, i.e., the blacks, to exist alongside better whites-only facilities. The Brown decision finally broke down the lie that separate was equal.

Scalia is a horrible man and a worse Supreme Court justice.

[Mike Sprinkel]

Maybe I'm confused...The article says that Scalia would have dissented in Plessy v. Ferguson. Dissent means that the Justice doesn't agree with the majority opinion and thinks the holding should be the opposite. So, you think he's a horrible man for that?

[charon]

Yes, you are confused. Watch what he says in the video. He states that the Brown decision was originalist, which is his position on issues (meaning he goes to the original meaning of the Constitution), then he claims that the justices who supported the Plessy decision that upheld the concept of "separate but equal" were "evolutionists," meaning they were changing the meaning of the Constitution to fit their needs. As I pointed out in my post, that is a lie.

Now re-read my post carefully so I don't have to re-type it, and you should no longer be confused as to why I claim Scalia is lying. If that doesn't work, go read the "Plessy v. Ferguson" decision, the 10th Amend. to the US Constitution, the "Brown v. Topeka Board of Education" decision, and listen again to what Scalia says in the video. That, hopefully, will clear it up for you.

[Mike Sprinkel]

Whoah...That was a pretty big journalistic flub! I mean, it's one thing to mess up minute details, but the prior story was a wholesale lie. Thanks for the correction, but how can I really trust stuff that's hot off the presses at this site after a mistake this egregious?

[BambooHarvester]

Tony, va Fungul Sfachim !
~

[Matt Osborne - Huffpost Blogger]

Issuing corrections?! Why, that would be an act...JOURNALISM!!!

When Glenn Beck admits he made up the "secret Negro Obama goon army," I'll accept that Faux Noise is a news organization. Until then, HuffPo has ten times the integrity of Ailes' evening lineup.

[Mike Sprinkel]

Admittedly, one expects that a newspaper won't print glaring falsities as facts. That's apparently what the Arizona paper did here, and, of course, a correction was not just prudent, but required. I guess the lesson is to factcheck a bit more if the story sounds too outrageous to be true.

[dragonladywaltham]

OMG, how did he get on the Supreme Court?

[RTIII]

Bush I ?

[seattle music]

Based on the "Original Intent" of the ruling American elite in 1776, an Italian from a mediocre family should be scrubbing pans in a bakery as an indentured servant, not telling his "betters" how to interpret the Constitution.

Right, Scalia?

Oh, wait. I guess "Original Intent" only applies to blacks, women, and poor people who are not Italian?

[arries]

I don't know about you, but he seems to conflict himself in his comments [reading it], but I guess that's the practice of the day...

How does someone confuse; "all men are created equal" to "separate but equal" when talking about the constitution or the declaration of independence? "Separate but equal" is okay because that was the day? That is racist, and if they didn't see that back then, well, it's plain language to me.. That was the sign of the time? The bible embraces slavery, but we fight not to embrace it because we know it's wrong even though their are groups that still embrace those biblical ideas [keep it to yourself]. Just because that's the way it was back then doesn't mean it wasn't a racist or wrong practice.

This is about peoples lives, not Hilters greatness of cars, freeway's or other objects!

"Scalia cautioned against "inventing new rights nobody ever thought existed.""

I don't think anyone is "inventing" new rights, people are just taking rights back that had been taken away from an overly zealot bunch of people in their own favor, and in many cases ended up being buried. People had their heads in the sand for a long time!

[joeyfoto]

The last word of my post was cut off: that last line reads:
"I do not want to live in Antonin Scalia's America."

PS. If anyone questions how archaic the framer's view of slavery was --- even by 18th century standards --- pick up a copy of Shakespeare's "The Merchant of Venice" and read Shylock's condemnation of slavery. That play was first staged in 1596. Many "Traditional American Values" were not progressive for the 18th century; the only reason to canonize them is a conservative predilection to justify the prejudices of the past.