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]

11:50 AM on 10/31/2009

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]

01:11 PM on 10/29/2009

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]

02:05 PM on 10/28/2009

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

[AlysonStern]

08:42 PM on 10/28/2009

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]

12:20 PM on 10/28/2009

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]

08:43 PM on 10/28/2009

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]

11:40 AM on 10/29/2009

Correction­: they are the mainstream media.

[Lowell Johnson]

12:18 PM on 10/28/2009

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]

12:15 PM on 10/28/2009

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]

11:29 AM on 10/28/2009

"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]

10:37 AM on 10/28/2009

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]

12:13 PM on 10/28/2009

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]

11:21 PM on 10/28/2009

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]

09:35 AM on 10/28/2009

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]

02:25 AM on 10/28/2009

Tony, va Fungul Sfachim !
~

[Matt Osborne]

11:18 PM on 10/27/2009

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]

12:35 PM on 10/28/2009

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]

10:18 PM on 10/27/2009

OMG, how did he get on the Supreme Court?

[RTIII]

12:56 AM on 10/28/2009

Bush I ?

[seattle music]

10:16 PM on 10/27/2009

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]

09:27 PM on 10/27/2009

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]

08:14 PM on 10/27/2009

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.