Sunday, April 27, 2008


Justice Antonin Scalia

Leslie Stahl interviewed Justice Antonin Scalia tonight on the program SIXTY MINUTES. The judge comes across in the interview as a pleasant, likeable fellow who loves an argument. He knows that his opinion is the right one and smiles when he says it. Clearly he expects an attempt at rebuttal.

Anyway, leaving aside his personality and his personal friendship with people with whom he disagrees, I believe he has a mistaken idea of the federal constitution. To him the constitution is not a "living" document. It is a "dead" document, and must be interpreted according to the original meaning of the words and the language at the time each part of the constitution was adopted. He is, in his own words, an originalist, or one who believes that the original intent of the writers is the compelling interpretation.

I beg to differ. My father used to tell me that the constitution is a means to an end, not the end in itself. It is a means to achieve a more perfect union and an effective, representative government. The constitution should be reinterpreted in terms of what the framers would decide now, if they were somehow magically brought back to life. The framers were practical men. If they were alive now, there would be some women among them. Justice Scalia himself stated that the opening phrase "We, the people" had a different meaning in 1787 from what it has today. The phrase would not have included Leslie Stahl, or any of the slaves then living, or, in fact, anyone who did not own property.

To be fair, Justice Scalia believes that change in our way of life, our values, etc., should take place by State legislatures enacting laws. The constitution has no reference to abortion, homosexuality, or gay marriage. If a State wants to legalize gay marriage, it can do so. If a State wants to permit, forbid, or regulate abortions, it can do so. If it wants to permit or punish homosexual behavior, it can do so. To extend what I believe to be his philosophy, the federal courts should not be viewed as the last refuge of persons seeking an end to unfair and discriminatory treatment, except in so far as various amendments have been adopted to assure that every man and woman has the right to vote, has the right to free speech, etc.

It seems to me that an important consequence of Justice Scalia's thinking eliminates the legal principle of precedent, or stare decisis. Most legal scholars believe that a previous decision by the Supreme Court has the same legal standing as the constitution itself. The court interprets the constitution for the rest of us. To Scalia, a wrong decision made by the court ten, fifty, or two hundred years ago is still wrong and should be reversed. Actually, I should say a decision he believes to have been wrong should be reversed.

Mr. Scalia is an entertaining and likeable fellow. However, I would not like to have eight other justices just like him on the Court.

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