Scalia in Summary and Retrospect

frostedmoose and I made after-the-fact updates to the initial Scalia liveblog in which we essentially summarized the speech. As this makes the post quite long, and are not components of a liveblog at this point, I decided to split them off into this post. Check below for our bullet points past the jump.

frostedmoose:

Here was the basic structure of the talk (and pardon my omissions and crudeness; I’m working from memory):

• Began with some basic foundational points about originalist interpretation; Justice Scalia made a point to contextualize himself against Justice Hugo Black (after which the annual lecture event is named), and put forward the dichotomy between “originalist” interpretations and “non-originalist” interpretations.
• “Non-originalist” interpretations, according to Justice Scalia, include everything that isn’t “originalist” interpretations; so, in a way, it’s not a dichotomy, but it’s an illustration that the decision-making schema among Justices consists of one that has a distinct objective methodological base and everything else that is based on broad but informed whims (not his wording, but mine).
• The Justice makes a big point about the originalist interpretation being the only game in town with an actual set of defined, universally-accessible rules. Everything else, he asserts, is subject to the individual will of the given Justice.
• Asserts that he separates himself as a person away from his responsibility as an interpeter of the constitution.
• The second half of his lecture consisted of responses against common criticisms of originalist interpretations. If I remember correctly, he addressed three in particular, one involving the attack that originalist interpretations are covers for conservative agendas, and another involving the idea that Justices are incompetent historians.
• Makes a big point to distinguish the science of law against the science of history. Interesting stuff.
• After the lecture, a bunch of stuff happened: condoms flew everywhere, and a banner came down.
• The banner read something like “There is no justice in a court of conquerers” (i think?), and Justice Scalia’s response was, in a sarcastic tone, “That’s a persuasive argument.”
• The Q&A kicked up shortly after that; most questions regarded specific cases, like Gore v. Bush, or on specific issues, like corporate personhood. Most of these were met with the predictable “I refer to the constitution” line of argument; personally, I felt that Justice Scalia’s tactic was justified, and that questions should have gone beyond individual topics and cases to actual constitutional theory. That would have been interesting.

Anyway, I missed out a lot of things. If anybody had a favorite quote, sound out below!

Mine was: “Eh?”, which was in response to a student’s circuitous question.

BZOD:

My fellow blogger frostedmoose gave a pretty comprehensive summary of the speech. Also, sorry in advance if some of these are repeats, but some Q&A matters (besides Bush v. Gore, which Nick mentioned below) include:

• Citizens United: To which he basically responded that the Constitution grants the right to free speech, and not the right to free speech for people. He also said that newspapers are a corporation too, and that you can’t make an exception for them, mentioning that freedom of the press refers not to the specific press, which didn’t exist in the time of the founders, but to printed material as a whole.
• Women and the Constitution: Women are protected under the Constitution too.
• Homosexuality in the Constitution: There’s nothing protecting same sex marriages, so any case case claiming that the banning of same sex marriage is unconstitutional is incorrect.
• Slavery: One person asked the interesting question of whether, if he had been on the court before slavery were outlawed, he would have upheld slavery. His response was that yes – under the rationale that his job is to interpret the Constitution and that it was explicitly a part of the Constitution.
• Abortion: Same as homosexuality: not in the constitution, anything brought before the court saying that the banning of abortion is unconstitutional is incorrect.
• Cases Where Originalism Goes Against Personal Views: Scalia’s example was flag burning. He hates flag burning, but ruled that the banning of it is unconstitutional, since it is protected under the First Amendment. He also gave some other examples of cases where he dissented.
• Originalism Isn’t Perfect: He says that Clarence Thomas is the “only other originalist on the court.” He cited an example when the two of them reached opposite conclusions on the same case. He had more of a rationale for how this can occur, and I don’t know if I feel confident enough at the moment to explain it fully, but it seemed to boil down to drawing on differing sources to determine the original intent.
• Originalism Isn’t Rigid: A big part of his argument (which I found very interesting) is that originalism is not rigid in that, by focusing on the original intent, it does not create interpretations of the Constitution “on a whim” that it ossifies into de facto law. Instead, by limiting justices, it allows the people to pass laws on things – like, say, abortion – and change as they change their mind, not relying on the court to reverse previous decisions. He also says that, based on this, it’s more democratic – it leaves matters in the hands of the elected lawmakers. Implied in this is that, if you want a result more rigid than a law, you should pass an Amendment instead of trying to get the court to rule one way or another.
• Disagreements with Past Decisions: Scalia cited one related to the Fourteenth Amendment. It was a bit complicated, so I don’t know if I feel confident explaining it here. I’ll try to edit this later when I’ve talked with someone about the nuances of it so that I’m certain that I understand it and all.

Anyway, cool stuff. For a social sciences nerd like me, it was really cool to hear the originalist rationale expressed in such a concise, clear, and convincing manner. Now I just want to hear someone from the other school on the Supreme Court – the one Scalia says doesn’t exist – and hear their rationale.