Scalia: Abortion, death penalty "easy" cases
Supreme Court Justice Antonin Scalia in March / AP Photo/Jessica Hill, File
WASHINGTON Justice Antonin Scalia says his method of interpreting the Constitution makes some of the most hotly disputed issues that come before the Supreme Court among the easiest to resolve.
Scalia calls himself a "textualist" and, as he related to a few hundred people who came to buy his new book and hear him speak in Washington the other day, that means he applies the words in the Constitution as they were understood by the people who wrote and adopted them.
So Scalia parts company with former colleagues who have come to believe capital punishment is unconstitutional. The framers of the Constitution didn't think so and neither does he.
"The death penalty? Give me a break. It's easy. Abortion? Absolutely easy. Nobody ever thought the Constitution prevented restrictions on abortion. Homosexual sodomy? Come on. For 200 years, it was criminal in every state," Scalia said at the American Enterprise Institute.
He contrasted his style of interpretation with that of a colleague who tries to be true to the values of the Constitution as he applies them to a changing world. This imaginary justice goes home for dinner and tells his wife what a wonderful day he had, Scalia said.
This imaginary justice, Scalia continued, announces that it turns out " 'the Constitution means exactly what I think it ought to mean.' No kidding."
As he has said many times before, the justice said the people should turn to their elected lawmakers, not judges, to advocate for abortion rights or an end to the death penalty. Or they should try to change the Constitution, although Scalia said the Constitution makes changing it too hard by requiring 38 states to ratify an amendment for it to take effect.
"It is very difficult to adopt a constitutional amendment," Scalia said. He once calculated that less than 2 percent of the U.S. population, residing in the 13 least populous states, could stop an amendment, he said.
In a lengthy question-and-answer session, Scalia once again emphatically denied there's a rift among the court's conservative justices following Chief Justice John Roberts' vote to uphold President Obama's health care law. Scalia dissented from Roberts' opinion.
"Look it, do not believe anything you read about the internal workings of the Supreme Court," he said. "It is either a lie because the press knows we won't respond — they can say whatever they like and we won't respond — or else it's based on information from someone who has violated his oath of confidentiality, that is to say, a non-reliable source. So, one way or another, it is not worthy of belief."
"We can disagree with one another on the law without taking it personally," he said.
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To be so locked in to the literal interpretation (in other words, "what I think the words mean."), of a document written at a time when future realities such as nuclear weapons, and mass-murders in schools and churches and at your jobs wasn't something even IMAGINED by the Framers, let alone factored into their writing, is exactly the same sort of mindless adherence to the Koran or the Bible we see practiced by fundamentalists the world over, and yes, found in Christian fundamentalists right here in the good ol' U.S.of A., and used to justify all manner of madness from intolerance and bigotry to murder. This is the sort of arrogance that destroys people...and I'm a bit taken aback to see it on full display by a Supreme Court Justice of the United States.
For someone who represents the last word in justice for our country, to simplify the future by reminding us of an archaic law from an inapplicable past, is just as misguided then as it is now, and only proves one thing...the past is good for learning and remembering lessons from, but not as a "How-To" manual for the present and the future.
I find it difficult to believe that wisdom is found in inflexibility.
But wait, Antonin, what's that little bit about rights not mentioned??
Scalia once said that "Torture is okay, because torture is not punishment, and only punishment cannot be cruel and unusual."
I agree. But torture DOES place one at risk of life and limb, and thus by the Double Jeopardy clause, you can torture them, but then must set them free.
"[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb . . . ."
Of course not. But thankfully, the document is flexible enough for the justices to construe novel interpretations of the rights contained therein to adapt to changing circumstances.
This forms the true genius of The American Constitution--and Scalia seems unable to comprehend that. And if his ideas were ever accepted by the majority of us, I suspect that in 900 years, we will bear striking resemblence to the Islamic extremists.
You know, like the Muslims do their religion.
The Constitution is a LIVING document. It's mean to be used as a framework, not tablets written in stone. This is why it's been amended 17 times in our nation's history.
If we want to live in the past, with everyone being able to own slaves, only white land-owing men over 21 voting and with no provisions for dealing with social change, we can join the Quakers.
U.S. justices serve for a term of "good behavior". That means they must remain mentally and physically competent. Based on his words, I would seriously question his mental competence and wonder if it isn't time to suggest that he be removed from the bench.
In the past, most justices recognized when they were no longer fit to serve. In the case of severe dementia, delusion or psychosis, it may not be possible for a justice to recognize that they are no longer fit to serve and should step down.
It's been said that they serve for life "no matter what". That, is untrue. They must remain physically and mentally capable of performing the job. No justice has ever been removed due to physical infirmity because they were mentally capable. Given what he's said lately, Justice Scalia's mental competence must be questioned - especially considering the need for level-headed, reasoned and insightful consideration of up-coming issues that will affect the United States for a generation.
If we want to live 225 years in the past, that's the price of allowing a delusional justice to decide what we should do based on what people who died over 200 years ago thought.
"[Scalia] said the people should turn to their elected lawmakers, not judges, to advocate for abortion rights or an end to the death penalty. Or they should try to change the Constitution. . ."
He never said nor implied we should keep 224-year-old mores. And his mental competence is in no question whatsoever.
Just think. Are we talking about the same Scalia? You know, the activist judge who voted to declare the National Health Care Act unconstitutional, EVEN THOUGH THE PEOPLE's ELECTED LAWMAKERS enacted it?
Talk about legislating from the bench!
It's not asking, "What was John Adams thinking when he wrote that?" But rather looking around and saying, what do we know about society, and how did society understand, interpret, and apply what was on the books as the law at the time it was passed.
This may sometimes take some history work, the further you go back, but if a law is to mean anything, rather than whatever you want it to mean, it's possible to do.
It's different than looking at one framer, or even a couple and pretending omniscience. But it's pretty easy to see how the law was understood and commonly applied.
In the places where there are disagreements... well that happens. His view point is not perfect. But it's not fraught with as many of the problems as all the other methods have.
For example: In the 18th century, the "ordinary meaning" of the word "militia" didn't mean everyone in the US; it meant specific, individual men responsible for order in their township or village. "Arms" meant flintlocks; it did not mean submachine guns or rocket launchers.
As a guiding rule, strictly textual interpretation of 18th century text by 21st century standards will more often than not waver from intent. Scalia is oversimplifying, and being intentionally inaccurate if he thinks this is good judicial review.