The Journal of The DuPage County Bar Association

Back Issues > Vol. 15 (2002-03)

Justice Scalia’s Comments On Constitutional Interpretation
By Brian Diamond

Justice Antonin Scalia of the United States Supreme Court spoke in Chicago on October 12, 2002. He discussed his philosophy regarding interpretation of the United States Constitution. In this article, I will attempt to summarize the points made by this great jurist.

Justice Scalia stated that he is an "originalist" in interpreting constitutional issues. He described his position as being one that seeks to divine the intent of the drafters of our Constitution. He pointed out that this is different from someone described as a "strict constructionist," who gives strict meaning and limited interpretation to the words of the Constitution. He pointed out that if you put most of the law professors in the country in a room, and fired a cannon filled with grapeshot, no "originalist" would be hit. He said that when he lectures to law students, he asks them to go back to their professors and ask them "if you are not an originalist, then what philosophy do you adhere to in teaching the interpretation of the Constitution?" He argues that one can either be an originalist or have no real philosophy at all in interpreting the Constitution.

Justice Scalia pointed out that it is fashionable to teach students today about a "living Constitution." By this, what is meant is that the Constitution changes to fit society’s needs as the culture changes. This is different from the concept that he espouses, which holds that as new issues develop that were not present or known to the Framers of the Constitution, these matters are viewed in terms of how the Framers intended to deal with issues such as these. Although the argument is put forth that modern times cannot have been anticipated by men living 200 years ago, Justice Scalia’s position is that it is the framework of the government that they established that provides all of the necessary flexibility. For instance, he said that he disagrees with the decision that found that a right to abortion exists in the Constitution. He pointed out that the drafters of the Constitution clearly knew what abortion was, and that it was prohibited in their time. The Constitution is simply silent as to this issue. There is no constitutional right to abortion in the same way that there is no constitutional right to prohibit abortion. The Constitution simply allows the people to choose to pass laws either way, through the democratic process, or to amend the Constitution.

He mentioned that it is common today to find individuals who are deeply passionate about a given subject who claim that any view contrary to their own must be "unconstitutional." It is this very habit that has arisen in modern times that has given birth to the concept of the "living Constitution." He believes that this concept is dangerous to the system of government that the Founding Fathers intended to establish, but he is pessimistic as to whether this concept can be overcome.

According to Justice Scalia, the concept of the "living Constitution" has given rise to interpretations of the Constitution that can change with the prevailing winds of the times. He suggests, for instance, that what we all understand to be protected free speech today could turn out to be unprotected tomorrow, if the culture changes to a new prevailing viewpoint. He said that this is not what the Framers intended. As another example, he pointed to the current debate about whether the death penalty is unconstitutional because it is cruel and unusual. He mentioned that the Constitution specifically mentions that there is a right to a jury trial in "capital" cases. There is no question that the drafters of the Constitution did not consider the death penalty cruel and unusual. In fact, the death penalty was imposed in all felony cases at that time, including horse thievery and similar nonviolent offenses. Therefore, he argues, there is no basis to claim that it is unconstitutional. Instead, the Framers provided for democracy to work in such cases. If one believes passionately in a cause, then one must persuade the majority regarding one’s viewpoint and pass a law through the legislative process to support that view. This is the democratic process envisioned by the Framers to deal with the changes they knew society would face in the future.

Justice Scalia believes that one of the dangers of the "living Constitution" is seen in the present struggle over judicial nominees. If the Constitution is a "living document" subject to change with the prevailing viewpoint of society, then it is the judges who will interpret the prevailing viewpoint. Under these circumstances, the majority will insist that the judges who are appointed share the ideology of the majority. Unlike prior times, when judges were scrutinized for their intellect, integrity, and ability to understand the law, they are now scrutinized almost wholly on their ideology. The reason for this is that the majority insists that its ideology be adopted in interpreting what is "constitutional" and what is not. Justice Scalia argues that this is a dangerous precedent and that the Framers were well aware of it. If the interpretation of the Constitution becomes captive to the majority, then all of our individual rights are in jeopardy. The Framers passed the Bill of Rights specifically to protect individuals from the will of the majority. By allowing the Constitution to be interpreted as a "living Constitution," subject to changing interpretations depending upon the changing viewpoint of our culture, the majority will see to it that its will is imposed by selecting jurists who abide by the majority ideology.

Justice Scalia made a point of saying that neither the left nor the right should be allowed to insert ideology into the interpretation of the Constitution. He pointed out that as a conservative, he is sometimes made uncomfortable by the consequences of this belief. Giving an example, he commented that his was the deciding vote in the flag-burning case. He came down on the side of the flag burner, despite his very strong personal feelings against such actions. He noted that the those who drafted the Constitution clearly intended to protect even what might be considered provocative speech against the government. Being an originalist can be uncomfortable at times for the jurist. It is not a philosophy that can make the jurist "feel good" about all of his or her decisions, because, unlike those who would interpret a "living Constitution," the decision does not depend upon a personal interpretation of the needs of a changing society. It is instead dependent upon trying to determine the intent of the Framers of the Constitution at the time they were establishing the framework of our government.

With apologies to Justice Scalia for any inaccuracies that may have crept into my description of his views, I hope that I have fairly communicated what was an interesting and thought-provoking discussion by this very learned member of our Supreme Court. I also hope it will spur you to consider your own philosophy in this regard and perhaps discuss the topic among your friends and colleagues. We all took an oath to uphold the Constitution, but what that means may be changing.

Brian Diamond received his B.A. with Honors from Notre Dame University in 1979, and his J.D. from the University of Illinois College of Law in 1982. He is a partner in the law firm of Walsh, Knippen, Knight & Diamond, Chartered, where he concentrates in personal injury law.

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