Justice Antonin Scalia Rocks!!--Part 3

Scalia made so many good points during his lecture that it was hard to get it all written down. I took 9 pages of notes and I still wasn't able to capture everything. I had called about getting into the media section being a blogger and radio show host and I was told that I could. The problem was that I didn't see much of an advantage and I wanted to sit with my friends. In hindsight, I see that had I done that I could've recorded it and gotten good pictures but it was probably still more enjoyable being with friends.

As I mentioned in my first post Scalia went out of his way to point out that being an originalist has nothing to do with conservative or liberal. When you interpret the constitution instead of re-writing it or making it say what you want it to, you will tick off both conservatives and liberals.

To illustrate this he told a great story about a case that made conservatives, even his own wife, not happy with him:

"I was the fifth vote in the flag burning case, which said it violates the First Amendment to enact a law saying that a person cannot burn the American flag if it's his own flag. And I was there because I think the First Amendment means you are entitled to express contempt...for the government, for the president, for the Supreme Court, for the flag. As long it's your own flag that you're burning - a law that is intended to prevent you from expressing your contempt is a bad law.

I didn't like that result. If it was up to me I would have, I would have thrown...this bearded sandal wearing flag burner into jail. But, it was not up to me..."

He then went on to say that the next morning he came down to breakfast and the Washington Post was lying on the table with the case in the headlines. His wife was cooking and humming the song, "The Grand Old Flag". He joked that he bet the Justices who believed in the living constitution never had to deal with grief like that.

Another wonderful story

Scalia gave a moving account of a conversation he had with a European Judge. The story is detailed at this site, here is the account:

"On September 11, 2001 I was attending in Rome, Italy an international conference of judges and lawyers, principally from Europe and the United States. That night and the next morning virtually all of the participants watched, in their hotel rooms, the address to the Nation by the President of the United States concerning the murderous attacks upon the Twin Towers and the Pentagon, in which thousands of Americans had been killed. The address ended, as Presidential addresses often do, with the prayer “God bless America.”

The next afternoon I was approached by one of the judges from a European country, who, after extending his profound condolences for my country’s loss, sadly observed “How I wish that the Head of State of my country, at a similar time of national tragedy and distress, could conclude his address ‘God bless ______.’ It is of course absolutely forbidden.”

Scalia isn't going to bend the constitution to say what he "wants it to say". Yet, he points out the constitution guarantees freedom of religion and that nowhere in the constitution does it give a woman "the right" to an abortion. Here is some of what he had to say regarding both issues:

Religion

In response to a question about the separation of Church and State, he made a passionate case on how America has never been a country that was neutral on religion. He said this:

"The state must be neutral...it must be neutral between religion and non-religion. Well, this is simply just not a description of America. It's just never been true. And the cases that come before the Supreme Court we prove that it's not true. We have, even though while mouthing this nonsense we have approved paid chaplains from the Congress..."

I wish I could remember more of what he said on this subject and how he said it. It was very good.

The Big A (Abortion)

"Do you think that those who, on both sides, bear in mind both sides of this issue, would like to read it into the Constitution? One side succeeded, but the other side would have done the same thing, uh, in the opposite direction. Having the court say, that the state must forbid abortions, whereas in fact, the court has said the opposite that you cannot forbid abortion.

The reality is the Constitution doesn't address the subject at all. And it's one of the many subjects not addressed by the Constitution which are therefore left to democracy. You want a right to abortion? Persuade your fellow citizens it's a good idea and pass a law. And if you feel the other way, persuade them the other way and repeal the law. That's flexibility. But once the Supreme Court has found that the death penalty is unconstitutional, or once it has found that there is a constitutional right to abortion, that is the end of the play. It's no use discussing it with your fellow citizens anymore. You can't do it. You can't have a death penalty. You cannot forbid, uh. You cannot place any restrictions on abortion on demand. That's flexibility? No. Those, those who want the Constitution to evolve wanted to do so precisely so that their favored positions can be made law coast to coast, now and forever, or at least until the Supreme Court changes its mind."

I will conclude with this excellent point that Scalia made:

Can we do some good things by ignoring the constitution and by embracing the living constitution? Yes, So What? Does that make it better? A broken clock is right twice a day.

**Disclaimer: I have tried to be as accurate as I can in relaying the information I heard in the lecture. I tried to get exact quotes when I could but some of it is from memory.

Previously:
Part 1
Part 2

Articles:
Justice Scalia Speaks at UCM

Justice Antonin Scalia Rocks!!--Part 2

Justice Antonin Scalia was invited to the University of Central Missouri by James Staab who is the Chair of the Department of Political Science. Staab wrote a book entitled, "The Political Thought of Justice Antonin Scalia". I have yet to read it but Heidi said it was pretty good although she didn't agree with everything.

The title of Scalia's lecture was "Constitutional Interpretation". He started out by saying that there were 2 thoughts, Originalism and those who believed in a "living constitution", he belonged to the former. Originalism used to be orthodoxy but now it is the minority view. He now says that "You could fire a grape shot out of a cannon over the best law schools in the country - and that includes Chicago - and not hit an originalist". It all changed with the Warren Court.

He then talked of the youngest Justice to ever serve, Joseph Story (who I had just learned about by listening to A Spiritual Heritage Tour of the United States Capitol by Dave Barton) and John Marshall.

He said the Founding Fathers wrote the bill of rights because they knew that future generations wouldn't be as wise or as virtuous.

He then proceeded to elaborate on how those that believe in a living constitution want it to "evolve" so that they can have their way on the different issues. They will rewrite it to say what they want it to say. Scalia was confirmed 98-0 but he said that would never happen today. Why?? Because liberals have figured out that originalists aka strict constructionists will not make the constitution say what they want it to say. Thats why at all cost, people like Bork and Thomas were to be stopped.

There is also this perception that those who believe in the living constitution are for more freedom. Yet, this isn't really true because he said often it takes away old freedoms.

The Living Constitution theory can be a seductive argument--There is this perception that if you care passionately about something that means it must be in the constitution. Scalia says, "How do you talk someone out of this?"

Arguments against the Living Constitution:

--If you don't believe in originalism, what do you want judges to be looking for?

--What else can be used besides the constitution?

--What is the alternative to originalism? There isn't a theory called, non-originalism.

--The alternative is letting judges govern you.(Think about how scary that is)

He concluded his speech by saying it was an unhappy ending because he didn't have a lot of hope for getting more originalists. Yet, he concluded with this awe-inspiring
quote that says it all for me on why I'm involved in politics:

"It is a battle worth conducting, and you should know what the battle is about."

Favorite phrases:

--"Get Real!"

--"Whatever that Means"

--"I confess, I'm a social conservative."

--Talking about the case BMW vs. Gore he said, "Not Al, this is a different Gore. Thank God. Once was enough..."

--"pox on both their houses"

--"I should be a pin-up guy for criminals."

--"If it was up to me I would have thrown this bearded, sandal wearing, flag burner into jail."

--"Tell the people to get lost"

--"If you are going to believe in a living constitution, at least let it be an American one."

--"Classes of little kids from grammar school come to the court now and then and repeat, 'The Constitution is a living document.' And I have to tell them it's dead."

Tomorrow, I will conclude with Part 3 where I will detail his comments on abortion and religion. I will also tell his great 9/11 & Flag stories.

Previously:
Justice Antonin Scalia Rocks!!--Part 1

Others who attended the event and blogged about it:
--I'm Hear to talk about Constitutional Law (Heidi's post)
--Scalia Commentary, Part 1 (High School Teacher & Coach who took a bunch of his students to the lecture)
--Antonin Scalia in Warrensburg (parts 1-4) (This is a liberal site but he gives a very accurate accounting of what was said in the speech.)