The idea that laws have fixed meanings that transcend generations has gradually been restored to a respectable station in the academic community and in the judiciary, said Scalia during the closing session of the Federalist Society’s annual meeting in Washington D.C.
Scalia credited the 26-year-old organization for focusing attention on key principles enshrined in the U.S. constitutional system that have helped make self-government possible. The Federalist Society includes legally minded conservatives and libertarians who seek to preserve constitutional structures such as the separation of powers.
Unfortunately, the “contagion” of a “living constitution,” one where written phrases can be divorced and reshaped away from their original meaning, has begun to spread internationally, even as U.S. courts have begun to show some improvement, he said.
“There is a belief throughout the world that judges somehow are charged with protecting human rights in the abstract -- never mind the text of a particular constitutional guarantee,” he said. “When one puts on a black robe, one becomes charged with protecting human rights as though we all agree as to what human rights are. There’s enormous disagreement. And to give the responsibility of determining the meaning of that abstract phrase to unelected magistrates is, it’s anti-democratic.”
Some U.S. Supreme Court decisions have cited foreign court cases and vice-versa because some judges are more concerned with what a particular textual phrase ought to mean, rather than what it actually meant when it was adopted, Scalia said. The notion of a “living constitution” is largely responsible for this trend, he said.
Justice Anthony Kennedy’s majority opinion in Lawrence v. Texas noted that the European Court of Human Rights had acknowledged certain fundamental rights for homosexuals.
“I’ve noted many times that it’s hard to get back to where we were [in terms of originalism],” Scalia said. “The philosophy of a living constitution -- which means it doesn’t mean what the people agreed to when they adopted it -- is a very seductive theory. It’s seductive for judges because it empowers them. It’s seductive for law professors because it lets their imaginations run wild.”
In a “liberal democracy” such as the United States it is necessary to impose stipulations on the “will of the majority” so that government agencies remain limited and checked in their activities, he explained. These exceptions to majority rule are contained in the Bill of Rights and work well so long as their original meaning is properly understood and observed, said Scalia.
“The system does not work well when the exceptions [to majority rule] are given by some other institution, a meaning the people did not understand when they adopted the exceptions,” he said.
The controversy surrounding the concept of “same-sex marriage,” for example, shows how the judiciary can sometimes intrude into an area of substance when in reality it should only be concerned with procedural matters, Scalia noted.
“The law is process, it’s not substance,” he said. “If you believe in the rule of law, you don’t necessarily believe in any particular substantive thing, you believe in process.”
Although some courts have ruled against local statues that do not allow for “same-sex marriages” on the basis of the 14th amendment’s equal protection clause, this reading does not square with what society understood the phrase to mean when it was adopted, the associate justice said.
When the U.S. Supreme Court ruled 6-3 in Lawrence v. Texas against a Texas sodomy law, Scalia wrote a dissenting opinion in which he accused the court of “taking sides” in the nation’s “cultural war.”
“One of the most revealing statements in today’s opinion is the Court’s grim warning that the criminalization of homosexual conduct is ‘an invitation to subject homosexual persons to discrimination both in the public and in the private spheres,’ ” he wrote in his dissent. “It is clear from this that the Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed.”
A few months after Scalia wrote his dissent, the Massachusetts Supreme Court in Goodridge v. Department of Public Health ruled in favor of same-sex marriage. Most recently, the California Supreme Court agreed to hear a legal challenge to California’s Proposition 8, which bans same-sex marriage. The proposition was passed by California voters in the November elections.
A jurisprudence of “originalism” can help to restore the vision of the Founding Fathers and give proper weight to the political branches of government where policy differences can be properly vetted, said Scalia.
Eugene Meyer, the Federalist Society president, told CNSNews.com that the organization has worked since its founding to “redirect attention back to the constitutional text” to help bring balance into what had been a “one-sided discussion” in law schools.
In reference to that issue, Scalia told audience members that he sees some encouraging signs.
In the academy, for instance, there are now three “originalists” on the Harvard Law School faculty, and others at other top institutions where there used to be none when the Federalist Society started, said Sclaia.
In the case of District of Colombia v. Heller where the Supreme Court, in a 5-4 decision, ruled that the Second Amendment protected the right of an individual to maintain possession of a firearm for private use, both the majority and dissenting opinions incorporated an “originalist” approach to interpretation, said Scalia.
“So maybe the original meaning of the Constitution is back,” he said. “You can disagree on what the original meaning is, of course. But we ought to have a system in which we all agree upon what we are looking for, what the interpreted text is. It’s not an area where you want to let a thousand flowers bloom.”