Justice Scalia: Mired in the 18th Century

Justice Antonin Scalia made a rare appearance on 60 Minutes Sunday night, the subject of an interview by an unusually gushing Leslie Stahl. Scalia generally avoids cameras, but he's hawking a new book about advocacy for lawyers. In the course of the segment viewers got a good look at Scalia's dangerous constitutional jurisprudence, something he calls "originalism." In Scalia's America, we don't have a "living Constitution," we have a Constitution that is fixed by the words as the Founders understood them back in the late 1700s, when the Constitution was written and ratified.

How would this view of our Constitution work out for most Americans? Well, as Justice Ruth Bader Ginsburg said to Leslie Stahl, "We the People" - the opening words of the Constitution - did not apply to women back in the 18th Century, nor did it apply to African-Americans.

Scalia denied being against "progress," but his claim that making progress in a democracy (he cited abortion and gay equality as examples) should be up to legislatures would mean abdicating the judiciary's obligation to apply the Constitution's guarantees of liberty, due process, and equal protection to everyone. Minorities, or those with minority views, would always be vulnerable to the tyranny of the majority, begging for basic rights.

As for torture, Justice Scalia dismissed the suggestion that it violated the constitutional bar to cruel and unusual punishment because torturing someone to extract information is not "punishment."

Scalia also claimed that "the Constitution is not mean to facilitate change. The Constitution is meant to impede change, to make it difficult to change." In fact, the Constitution is not about change at all. In large measure, the Constitution is an articulation of fundamental principles, a declaration of rights, and a set of restrictions on governmental power.

Scalia's view of our founding document as an impediment to progress is pretty scary. The genius of our Constitution is that it is not fixed in time, but that its general principles have proven equally applicable to an America in the age of the horse and buggy and to a country that has seen humans stand on the moon.

The new president elected this November will likely have the opportunity to fill one or more vacancies on the Supreme Court, with the consent of the Senate. Scalia's 60 Minutes interview has helped underscore just how high the stakes are when Americans go to the polls.

Kathryn Kolbert is president of People For the American Way.

Comments

[SamThornton]

Justice Scalia's ignorance and dismissiveness was truly astonishing. He should be impeached and disbarred from the practice of law on the basis of his statements. I wouldn't trust him to be a Notary Public.

[rwoodsathome]

Clearly you have no idea of the topic - we are debating constitutional law.

Besides, common law only comes into play when a judge makes a ruling when there is no authoritative statement of the law. The problem with activist judges is that they have to twist themselves into pretzels to ignore the authoritative statement of law to make their rulings.

[Durango]

Common law is as much a part of the law as what is written in the Constitution.

Common law comes into play in nearly every decision made by every judge in the land. Are you familiar with the concept of PRECEDENT? That decisions made by previous judges are used to make decisions every day. In every court in the land.

To say that the law is static is foolish in the extreme. And to claim that the law is restricted to what is written in the statutes is also ridiculous. Try that out in court some time. Tell the judge that he has no need to read case law.

And I will assure you, you will go down in flames.

P.S. Scalia is as much an "activist judge" as has ever sat on a bench. But you don't recognize it because you believe in his activism.

[rwoodsathome]

The constitution is what it is - and nothing more. We cannot keep re-interpreting the constitution to fit our desires. What it meant in 1860 should be want it meant in 1960 and what it means in 2060. That's why we have the amendment process.

To say we can keep re-interpreting the document means that the Constitution really means nothing because its meaning would keep getting changed. That's Scalia's point. The constitution has to stand for something or the whole legal foundation comes tumbling down.

When the citizenry decides that the Constitution is lacking then we amend it. But to have a court selectively amend the Constitution goes beyond their authority. By allowing court A to amend the constitution only opens the door to court B to amend the amendment and court C to amend the amended amendment. Eventually nobody knows what the law really is.

[professor]

Scalia is an imbecile. He changes what he wants and doesn't change what he doesn't want. Talk of "principle" is platitudinous nonsense. He wouldn't know one if he ever clipped his nosehairs which he doesn't.

Respect for hapless boobs just because some fascist appointed them to wear dresses, or because they have a whoopdedoo law degree, is, to put it mildly, stupid.

What matters is what is right and wrong. The Constitution is wrong and so is the Supreme Court. Following, accepting, acceding to, worshiping wrong things is wrong. Wrong is wrong.

Torture is punishment. Also, a rose is a rose.

[StinkyPete]

Mechanisms for changing the Constitution

http://en.wikipedia.org/wiki/Constitution_us#Provisions_for_changing_the_Constitution

The SCOTUS interprets but does not change the Constitution. They have ample room in their opinions and dissents to recommend change - through proper channels and procedures.

His scary remarks about torture are valid - use as a means of repression, intimidation or as a means of attempting to extract information are distinct from mechanisms of punishment.
RTFD - Read The Friggin Document.

[Durango]

Well that's stupid.

You think that Madison, Washington, Franklin, and the other writers of the Constitution, revolutionaries all ,would agree that torture could be used to obtain information and then specifically ban cruel or unusual punishment?

You have to twist the law into so many directions it is absurd. And only a self righteous fool like Scalia would even think about such a stupid argument.

You think Washington didn't know about interrogation techniques? Do you not know he used the most successful intelligence service in American history?

And you think Washington would agree to torture? Then you are a fool of the greatest magnitude.

Forget about Wikipedia. Study some American History.

[Durango]

The Constitution is not designed to prevent change. That idea is stupid.

It is the Senate which is designed to prevent change.

Jeez, any 11th Grade Civics student could tell Scalia that!

[CommonSenseRules]

And yet you give nothing to back up your opinion of the Constitution as living. And yet you are simply a blogger on HuffPost and this man is a judge on the Supreme Court.

And the reason that the Constitution can apply to a horse drawn America and a man on the moon America is because there are certain universal philosophies and values that are timeless and always human, NOT because you feel it can be interpreted and ratified to your liking. So, Scalia was right!

[westwind]

In saying that Kathryn Kolbert gives nothing to back up the concept of a living Constitution, you deliberately avoid acknowledging her restatement of Judge Ruth Bader Ginsberg's point that women and Afican Americans were excluded from "We the People". If you like the fact that people who aren't white males are cast forever as second-class citizens by a non-living Constitution, then of course Scalia makes sense to you.

Your one valid point, that "there are certain universal philosophies and values that are timeless and always human" has nothing to do with whether the Constitution can be interpreted to changing situations or not. At the time the Constitution was written, the framers' "universal philosophies and values" did not include acknowledging the equality of women and those of other races. A living Constitution safeguards those universal philosophies and values more than a non-living Consitution.

A living Constitution helps free us from the prejudices and ignorance of the past, but I'm guessing that freeing yourself from prejudice and ignorance is not part of your plan.

And Kathryn Kolbert is not "simply a blogger on HuffPost", but the president of People for the American Way, as is clearly stated at the end of the article.

[rwoodsathome]

The Constitution is a living document only because it can be changed through the amendment process - by the will of the people - not by the whims of five justices!

Judicial activism is wrong at any time, and at the Supreme Court level, it is an insult to every American.

[Durango]

You clearly have no idea how the law works.

Ever hear of Common Law?