Freedom Lawyers of America

Justice uses humor to pan argument Constitution is 'living document'
By Jennifer G. Hickey � 2003 WorldNetDaily.com Posted: March 7, 2003 1:00 a.m. Eastern
http://www.worldnetdaily.com/news/article.asp?ARTICLE_ID=31387

The speech delivered by President George W. Bush at the advocacy conference hosted by the American Medical Association may have received the most ink, but it did not elicit the most laughter from those in attendance. In fact, the humor was provided by one of the most unlikely of speakers � Supreme Court Associate Justice Antonin Scalia.

Addressing the conference with his right arm in a sling as a result of recent shoulder surgery, the conservative jurist used a liberal dose of sarcasm and humor in making the argument for an originalist interpretation of the Constitution. As Republicans and Democrats in the Senate dug in their heels to try to stop the nomination of Miguel Estrada to the U.S. Court of Appeals for the District of Columbia, Scalia criticized the politicization of the nominating process, asserting that the nation's system of justice is getting kicked in the teeth.

"I've been predicting this for 20 years � that ultimately this theory of the living Constitution will destroy us, it will destroy the federal courts," Scalia said.

The current legislative loggerheads, he said, are a result of interpretations of the Constitution as a "living document" � one that is flexible and adapts to a society's ever-changing standards. Scalia argued that as an originalist (he pleaded not to be labeled a "strict constructionist"), he knows what he is looking for � the original intent of the words used by the Constitution's authors at the time it was authored.

For instance, by specifically mentioning the right to a trial by jury in "capital" cases, the drafters left no doubt that they did not consider the death penalty to be cruel and unusual punishment (as has been argued by proponents of a "living Constitution"). If a judge adheres to the original intent, Scalia said, he also is bound by it regardless of his own personal beliefs. "If you don't want your judges confined by that, what do you want your judges confined by?" the justice asked.

Once the American people become aware that jurists are not using the original meaning of the Constitution as their guide, they will realize the judges must be making it up. "Once the people figure out what the game is, they will say, 'We will select our judges on the basis of who will create the Constitution that we desire.' You are watching this play out before your very eyes," Scalia said, referring to the judicial crisis that has resulted from inaction by the Senate on pending nominations.

Often depicted in frightening terms by his critics, Scalia displayed a strong sense of humor in outlining his judicial philosophy, as well as in describing the wrongheadedness of "living constitutionalists" who revel in what they see as the Constitution's recognition of the "evolving standards of decency that mark the progress of mature society." Repeating the phrase with sarcastic glee, Scalia inquired why "better societies only mature; [do] they never rot?"

Decried and demonized most often by liberals, Scalia advised the audience not to view the debate in terms of liberal versus conservative because "conservative Republicans are just as willing to distort the Constitution to their aims as are liberal Democrats. It has nothing to do with your social views."

He illustrated his point with two decisions handed down by the Supreme Court on the same day in 1996. In the first case (Romer v. Evans), the court ruled as unconstitutional an initiative passed by voters in Colorado denying special legal protection to homosexuals. It was deemed unconstitutional, said Scalia, in "violation of ... I have no idea. The sexual-preference clause?"

Liberals cheered the ruling, while conservatives derided it. The other case (BMW v. Gore) involved the question of whether a punitive award could be so grossly excessive that it would violate the due-process clause of the 14th Amendment. At issue was incidental damage done to Ira Gore's new BMW (or, as Scalia called it, his "Beemer"). The car was repainted, but BMW did not tell Gore about the damage when selling it to him. A jury decided this constituted fraud and awarded Gore $4,000 in compensatory damages for reduced value of the car and $4 million in punitive damages.

The Supreme Court ruled 5-4 that the punitive-damage award was "grossly excessive" and, as Scalia added, "unconstitutional and a violation of ... I have no idea. The freedom-from-excessive-punitive-damages clause of the Constitution?"

Conservatives applauded and liberals jeered, but Scalia says a pox should be on both their houses. The Constitution was written to establish and protect American rights, as well as to prevent future generations who might not be as virtuous or wise as the Framers who wrote it from doing some foolish or evil things, he said.

"Its meaning doesn't change," Scalia contended. "To achieve change, all you need is a legislature and a ballot box. Things will change just as fast as you like." Instead of creating new rights in a way in which democracies normally do � by passing laws � proponents delight in the idea of a living Constitution because it enables judges who agree with their idea of change to insert a "right" that cannot be overturned. This is easier than engaging in the systematic process of persuading fellow citizens of the worth of a particular right and passing that right into law.

In adopting an originalist interpretation, Scalia told the audience, judges often find themselves supporting a right to which they personally are opposed. In siding with the majority in a 5-4 ruling protecting the right to burn the flag, Scalia said he was bound by the First Amendment regardless of his views � and those of his wife. The day after the ruling, Scalia said he came down for breakfast to find the banner of the Washington Post heralding the decision and his annoyed wife humming "Stars and Stripes Forever."

Added Scalia, "If you have to be bound by what it meant when it was adopted you often have to reach results you don't particularly like."

Asked by an audience member about his views on the due-process rights of enemy combatants currently detained at Guantanamo Bay, Scalia refrained from addressing specifics. However, he said the likely question at issue if a case comes before the Supreme Court would be who has rights under the Constitution.

"Americans abroad, Americans anywhere, have rights under the Constitution. Aliens in the United States have rights under the American Constitution. But to say that aliens abroad have rights under the Constitution, well I am not sure I can govern that much territory," remarked Scalia to a clearly entertained audience. However, he concluded, there probably is a reason why the holding base is on Guantanamo Bay and not in Cuba.

Scalia will continue to be a lightning rod in the current debate over Estrada's nomination and in other Supreme Court nomination battles, but members of this audience left entertained by his wit and perhaps enlightened by his wisdom.