Justice Antonin Scalia's remarks at the Acton Institute's 7th anniversary dinner

it's my very great pleasure now to welcome dick Antonini chairman president chief executive officer foremost corporation of america to introduce our keynote speaker a Grand Rapids native dick originally joined foremost corporation as assistant to the president subsequently served as chief financial officer and executive vice president before assuming his current duties as president and CEO he attended Ferris State University and earned his degree there later elected to receive that institution's Distinguished Alumni Award he and his wife Linda reside here in the Grand Rapids area it's my very great pleasure to ask Betsy Sirico Antonini let's go the just back from Rome dick Antonini will you come up please and introduce our featured speaker a tuple Italiano gringos ah well this is just a great honor to be asked to introduce such a distinguished individual that we have tonight I was told that I was supposed to tell a joke now ads told most of them but I thought well ok men insurance and our name has a kind of a ring at the end the three of us and so there's there's something they say about actuaries life actuaries they say what's the difference between just a life actuary and an atty in actuary hmm and they say well just a Life actuary just average actuary we call them they can calculate how many people are going to die within the next year the Italian actuary can give you their names first let me say how proud I am to be associated with the Acton Institute for the study of religion and liberty if Liberty in America is to be preserved and strengthened and if this country is to continue to be a beacon of Liberty for the rest of the world then it's organizations like the Acton Institute and the Heritage Foundation that really must flourish and have the support from all of us to carry on I thought how often does one have the honor to introduce a member of the United States Supreme Court and where does one begin when describing the education and experience of a man who has been given a lifetime appointment to the highest court in the land permit me to start with a man that you know the man with whom the public is familiar Antonin Scalia in 1986 President Ronald Reagan nominated the judge from the US Court of Appeals DC Circuit to serve as an Associate Justice of the United States Supreme Court and after receiving confirmation by the Senate Judicial Committee one of the might say more placid confirmation hearings in almost a decade Antonin Scalia took the oath of office for his term on Tuesday September 26 1986 who was this boy from Trenton New Jersey the first American of Italian heritage to be appointed to the Supreme Court and how did he make it to the chambers of the court who whose halls ringed with a history of such landmark decisions as Marbury vs. Madison Miranda versus Arizona and Brown versus Board of Education in whose succession of justices include names familiar to most of us here tonight John Jay John Marshall Warren Berger and where mine windcrest as a student in the 50s the future Justice Scalia studied at Georgetown University and the University of Freiburg in Switzerland graduating with a degree in law from Harvard University not only has he studied law at Harvard University he has practiced as an attorney in the neighboring state of Ohio he has taught the subject of law at the universities of Virginia and University of Chicago he has adjudicated law for the US Court of Appeals for the District of Columbia Circuit but as a strict constructionist of the Constitution and in keeping with the spirit of the founders he has interpreted but not tried to make the law as a member of the highest court in our land as we were chatting up here I have a hunch that Justice Scalia would point to another vocation of what she is most proud and that is the fact that he is the husband of marine Marines Marine Scalia and father of their five sons and four daughters but I will mini bumbino's I'm you know he has all these things and really much more because he is also a man of personal faith and common sense values about a year ago Justice Scalia caused an uproar over a statement he made during a prayer breakfast at the Mississippi College School of Law a Baptist school the Justice stated and I quote the devout Christians should expect to be regarded as fools in secular society the observations would be familiar to anyone acquainted with the Apostle Paul which evidently does not include the national media for that statement his objectivity in regards to his role on the Supreme Court was questioned a friend of justice scalia's wrote the following in The Wall Street Journal and I quote st. Paul's remark about himself and other apostles being fools for Christ's sake was meant to draw the contrast with the howdy and self-satisfied it was remarked born of humility when faced with God's power over our lives contrary to the protest against justice scalia's speech a responsible use of judicial reasoning as well as intellectual objectivity would seem to require such humility that friend was another East Coast Italian father Robert Sirico and I yet another son of Italy there's no conspiracy going on up here consider it a great honor to introduce to you the Supreme Court Justice Antonin Scalia okay No okay thank you very much mister Antonini bishop mangling Reverend clergy governor Engler father Sirico ladies and gentlemen dick and I were talking about how to say my first name before he introduced me he got it wrong I think he got it wrong I don't know my grandfather's name was Antoni no and it was it's just a tradition in Sicilian families for the son to be named the first son to be named after the paternal grandfather and for some reason my father dropped the Oh off I maybe he thought he was Anglo sizing the name or something well anyway I mean that's why my nick name is Nino and I've always said it Antonin but I but it reminded me when he said Antonin when I was was nominated to the Supreme Court the Washington press corps was furious because they they had not a clue that Chief Justice burger was stepping down and that they were going to be two new appointments one for the new Chief Justice and one to to replace Rehnquist who was gonna be chief justice this I mean those of you who haven't spent a lot of time in Washington cannot appreciate but what a rare thing it is for something to be set that close so we come into the into the the White House press room which is sort of a which has these snarling creatures you know you're up on the stage and they're there they're all out there and they were really mad because they didn't know about all this and as we go in I remember some of President Reagan's staff gone and well you know we've been we've been working on them for for a half hour I think I think he'll say Scalia right but Antonin I don't know and that's how it happened it was alright I want to talk to you tonight about about the constant assuming my voice will hold out I want to talk to you tonight about the Constitution of the United States something to which I devote a fair amount of my time these days I could begin by talking in the prepared text I have here spends a fair amount of time telling you what a remarkable document it is and and I'll skip over that part rather lightly because being the group URI is I assume you know that but maybe you forget it now and then I mean there is really nothing like it in the world it is not a great Constitution simply because it's our Constitution there is no Constitution like it in the world and there never will be never again in the history of mankind will will a governing document be put together not by political parties figuring out how to pass all out the power the best way or by by conquering armies but but by a June July 4 month a four month seminar attended by the most prominent people in the country which is how this document came to be it will never happen again from mid-may to mid-september the the most respected and politically experienced people in the nation spent every day of the week in Philadelphia five days a week having their conferences sometimes on Saturdays as well and then discussing the things in the evening when they got back to the inn that's a whole baseball season there used to be a whole baseball season I mean you you know that that would not happen that way again today I mean you you know the the great men and women would go up to Philadelphia and they would have chopped some general principles and say well you let let the staff work out the details and they go back to Washington but you know these are the greatest men in the country Washington Franklin all of all of the leaders it'll never happen again and you know when you get blase about it I always recall a wonderful trip I had when I served in the Ford administration in the in the Department of Justice I was head of a division called the office of legal counsel which was the legal adviser to the government and to the White House we were invited to to go over to Rome to help the Italian the corresponding office in the Italian government celebrate their anniversary it was an agency called the Evoque Authority lo stato the state's advocate they they were the advice giver and also the litigating arm of the of the Ministry of Justice so I went over along with Rex Lee whom many of you may know a former Solicitor General and then later president of Brigham Young University so we leave the Justice Department those of you that know the Justice Department it's on Constitution Avenue sort of a nice Art Deco building very pleasant and we go over to the offices of the Avoca torta del estado which are located in a building that was once the headquarters of the Augustinian order where martin luther lived when he was in Rome and you know the mind reels backward are they Art Deco compared to Martin Luther I mean how how Nouveau how Nouveau we are we Americans and and and I think very often you have that feeling when you go to Europe you know this is all so old and so veneral and then it occurred to me these guys this this evoke authority el estado they were celebrating their hundredth anniversary big deal my my country was about to celebrate at that time coming close on to celebrating its 200th anniversary we have been one people living under this this remarkable document for a century longer than Italy has been a nation for a century longer than Germany has been a nation France has been through five constitutions in something like eleven different forms of government since since we started living under this constitution so you know in in many ways we we are the new kids on the block we Americans and I hope we retain much of the good qualities that go with youth and vigor but in one thing we are the most ancient and the most venerable and the most experienced and I think the wisest and that is in what what James Madison at that grand convention in Philadelphia what he called what he and his his colleagues were engaged in the new science of government where the oldest and the best did that so you should you should not think that this Constitution is special to us just because it's ours it's not special because it's ours it's special because it's a remarkable document and has maintained liberty and stability in this country for longer than any other written constitution in the world now III that's telling you stuff that maybe you know already what I want to talk about is what we are doing to our Constitution well what we think we're doing to it when we when we interpret it I am one of a small but Hardy breed of interpreters left in the world who are called textualist s-- or originalist s-- not not strict constructionist I am NOT us new time I will get to that I am NOT as strict constructionism well I am a textualist I believe you people ask me well why when did you become a textual what caused you to become a textual you know you when did you begin eating human beings you know as though it's something it's as always some weird thing you know I I mean I when did you begin to become not a textualist you have a text you should read the text I I like it here I've always baffled at the amazement of these but well what a novel idea you're a textualist so I treat the the Constitution the way the way laws statutes have always been treated we try to figure out what it meant when it was adopted now I say I'm a textualist and an originalist I do not believe that its meaning evolves over generations so that to each age it contains everything that's good and true and beautiful even though it's not really written in there no my my philosophy was until recently not only not weird it was worth a doc see everybody you know at least said that you know the Constitution was that rock that unchanging fundamental document that means today what it meant and it's our salvation and that's it now they didn't always follow it I mean it isn't that you that you didn't have willful judges who would twist and distort it in the past yes you will always have willful judges but the difference was in the good old days they had the decency to lie about it they would you know they they would say that you know used to mean that but it and that was a lie today this is a major change because I reflect upon this hypocrisy is the beginning of virtue to today you do not have to lie about it you just simply say well it ought to mean that and therefore it means that we we indeed have opinions this is a development that has occurred probably in the last 35 years or so in American constitutional jurisprudence in our opinions involving the Eighth Amendment the amendment that prohibits cruel and unusual punishments we state that what constitutes cruel and unusual punishment changes overtime the provision does not mean today what it meant in in 1791 when it was adopted so that something that was not cruel and unusual punishment that maybe qualen or usual today because it it evolves according to our opinions say to to reflect the evolving standards of decency of a maturing society that's the language in our in our opinions they have evolved extenders of decency that reflect a maturing society let me say it again the evolving standards of decency it is so pollyannish you know it sort of every day in every way we get better and better societies societies only mature they never rot now now that is of course not the frame of mind of a group of men who think there is a need for a Bill of Rights they are less Pollyannish they they have less confidence that that humanity will be better or even indeed as good in the future as it is today I mean surely the whole purpose of a Bill of Rights is precisely to to stabilize certain provisions so that they cannot be changed by a future and less virtuous generation that's the kind of frame of mine they had and that frame of mine is reflected in my kind of Constitution but it is not reflected in the Constitution that we have today and that most lawyers most judges and worst of all I'm afraid most Americans believe in and and many of you probably believe in it although you don't know it that is you have heard the phrase the living Constitution living caused that wonderful document that grows with the society that it governs so that it always reflects the best virtues of that society it's a tough thing to argue against I mean I am I am trying to sell you a dead Constitution right it's this is you know you were to a disadvantage right away now if if you think that that this is not true though I had a I speak to groups that come to the court now and then student groups and and there was one group I was told several years ago was was going to be there and they said this is a group that is conducting a nationwide competition on the Constitution I said he isn't that terrific for high school students it seems very good an admirable group I should talk to these kids well it turns out that what the competition consists of is each school had various teams they had a First Amendment team a Fourth Amendment team a Fifth Amendment team a sixth amendment team an eighth amendment team and the way you win the competition is you figure out the the most incredible unbelievable new right that no one has ever thought of before that can be developed under the First Amendment or the Fourth Amendment the sixth mm right in other words you develop this living Constitution into you know what be be all that it can be I guess that's it has come to such a pass that you know when I was a kid growing up in - I was born in Trenton dick but I really I really grew up in New York City in Queens and in those more simple days when people got frustrated with the state of affairs in in the world or in government or they would pound the table and say there ought to be a law there's a good healthy democratic reaction I thought there ought to be a law against in fact there was a comic strip there ought to be a law about really obnoxious people that there ought to be a law against you know people playing boom boxes or whatever I haven't heard that phrase in year people don't say that anymore they really don't I haven't heard it what they now say is it's unconstitutional I mean if there is anything that really is bad why it must be unconstitutional never mind the text it doesn't matter the text is he irrelevant we've got a due process clause equal pretty well squeeze it in there somewhere but if it's really bad it has to be unconstitutional it's like to take another example from popular culture there was there was a while back an ad on television for some pizza sauce I think was prego something like prego pizza sauce no they sell it in the Midwest they sell that and and you know the husband in this ad II he asked his wife well you know you're gonna buy this store-bought and sauce I mean why aren't you gonna make it yourself you doesn't have a rich doesn't have a regular when she says it's in there he says yeah but it does it does it does it have it's in there does it have olive oil it's in there what about basil it's in there we got that kind of a constitution now what do you want you you want to write to an abortion it's in there you want to write to die it's in there what whatever is good and true and beautiful never mind the text it's irrelevant now you should not think that this this affliction this depravity of mind that that reads a constitution to say whatever you want it to say is is a an affliction and depravity that is limited to liberals it is not it conservatives are quite as willing to bend the Constitution to their will as as liberals are the best example is last term I think we released on the same day two opinions one of them was the Romer opinion that that found a new constitutional right for homosexuals not to have a state constitutional provision adopted by referendum which prevented government including local government from according any special privileges on the basis of homosexuality we struck that down as unconstitutional I presume relying on the homosexual clause of the bill of rights the same day how and and the Liberals applauded that the Liberals loved it the conservatives did not like it the same day however we released an opinion in a case involving BMW the the automobile manufacturer involving punitive damages BMW had gotten hit with some incredible amount of level of punitive damages for having sold as new cars which indeed had been scratched in transport and they painted over the scratches they claimed it's a standard practice in the automotive industry but the but the Beamer purchaser said yeah but I didn't buy a car I bought a Beamer and the I guess it was the Arkansas jury believed the purchasers and gave him an enormous amount of punitive damages my court held it was unconstitutional to give excessive damages under I suppose the excessive damages clause of the Bill of Rights and there in 200 years we had never said that you know you're entitled due process but if the jury comes in with a wrong answer and gives too much then you know that's one of the costs of democracy it's not a federal constitutional right but it is now a federal constitutional violation at least if it's punitive damages and the conservatives loved it they loved it wonderful so search your souls I mean if you're going to be honest about reading the Constitution to say only what it says and not what you want it to say you have to take the good with the bad and and you can't like the the liberal invention or the conservative inventions but dislike the liberal inventions I want to say something else about about about the living Constitution as its name implies it is often marketed on the on the appeal that well it's it has to be a living Constitution because it has to grow and expand with the society that it governs it's it's sort of it's an organic kind of a thing you know I did it anthropomorphic like the stock market brokers who you know you read in the paper the stock market is is resting for an assault on the on the 7,000 left it says everything resting at some base cap you know well the the Constitution is the same thing you say it it's it it's like a human being and if it if it didn't expand and grow it would become brittle and snap so what these people these living Constitution people want to bring to us is flexibility the Constitution has to expand to ask yourself ask yourself do these people want to bring us flexibility in my Constitution if you want to write to an abortion create it the way most rights are created in democratic societies pass a law you don't want it pass a law the other way you want the death penalty having it you don't want it pass a law the other way you want a right to die pass a law you don't want to pass a law the other way you want punitive damages pass a law you don't want it there I mean that's flexibility oh these people don't want flexibility they want what it is inevitably the function of a Bill of Rights or of a constitution to provide rigidity they insist that there be no death penalty although the Constitution says I mean you know it's the death penalty corner unusual punishment under and so that it's it's bad under the a thermal have sat with with no less than three three colleagues all retired now who thought the death penalty was unconstitutional although it's mentioned in the Constitution and no person shall be deprived of life liberty or property without due poor do you think they're talking about I'd never mind I mean really the text for for someone who is not a textualist or an original is it doesn't matter it really doesn't matter you you cannot imagine how I'm not kidding you I'm not exaggerating the state of the the state of the law it doesn't matter for the for the non originalist every day is a new day what if the death penalty is alright let me just take off a few of the problems which must be out of here at quarter after we'll be pretty close to quarter a problem one with a living Constitution is legitimacy if it indeed were the case that the Constitution is not a it's not a statute a text the judges can deal with the way they deal with any statute and we don't think a statute changes its meaning over over time if it's not that if it is sort of this aspirational document and into which a society can pour all of its most profound beliefs then why does my court have dibs on its interpretation you know some of the Europeans that have copied our system of judicial review of legislative action by the way that's the only significant portion of our Constitution the Europeans have copied none of the rest not the most central portion such as real separation of powers even between the executive and the legislature that's real separation or you know a bicameral legislature to weaken it they don't copy that because that you know that in Feebles the government they don't like an enfeebled government and I'm sorry this is all a parenthetical I am sorry by the way that some Americans have begun to think the way the Europeans do and they know the Europeans say oh what an inefficient government is gridlock and you hear Americans say you know what an efficient government it's gridlock yes that's what they meant it to be where was a unlike these new European constitutions that copy our system of judicial review our Constitution doesn't say the interpreter of the Constitution shall be the Supreme Court and as I said tell some of the foreign groups that visit the court we we are not a Constitutional Court not only don't we do exclusively constitutional interpretation but what constitutional interpretation we do we do by accident because that's what Marbury vs. Madison says it says look we're here to decide private disputes but to decide private disputes we have to apply the laws that are in effect but I can't tell whether this law that's before me is really it looks like a law but if it contradicts the Constitution it's not a law so I have to decide whether it you know it's lawyers work is what is what John Marshall says in Marbury vs. Madison it's just lawyers work it's what lawyers and judges have always done to decide what is the law but if that's not what our Constitution is it's not a regular law it's it's you know it's it's this embodiment of principles then then Marbury vs. Madison was wrong I mean I you know I don't know what the evolving standards of decency of my maturing society are but the Congress knows much better than I I'm really out of touch the second problem the second problem with rejecting textualism and and originalism and this by the way for those of you who wanted to bait this with with the other side this is really the killer argument it's a terrible thing to do but ask the law professor on the other side okay okay suppose I agree with you that originalism is not the proper method of interpretation we'll use your method of interpretation what is your criterion really profound silence because the fact is that there is not even another candidate in the field it is not enough to be a non originalist to say you know I don't believe that what governs us is the original meaning of the text that's that just means you don't agree with me if you're not an originalist you've got to be something else what is your theory of interpretation if it is not originalism non original ism is not a theory and you know once you once you ask for that are you you get as many different criteria as there are law professors or judges the philosophy of Plato John Rawls the philosophy of John Rawls what natural ball we all agree on that you either use originalism or you use nothing which is you know in those areas where we've made up the Constitution essentially what we use what what do you imagine a judicial body does when it for example in in the area of abortion Roe versus Wade and all of that the latest embodiment of our of our constitutional test is that a state law is is unconstitutionally if it unduly burdens a woman's right to an abortion well you know how do i how do you think I will decide that when when it comes to my court in the next case where where do I go to look up whether it's an undue burden if I look up the statute books and the history books I find and any burden was not an undue burden so where do I go what law book do I run to it's not a lawyer's question so how do you think the courts decide these things or whether there's a right to die you sir say gee I don't think it's you thinking I don't think so what about you you think how many well that's five five is all it takes it it must be an undue burden I mean I I am making light of it but the fact is there is no criterion if you want your judges to just just vote their guts fine then if you think that's law but once you abandon the original meaning you know originalist don't always agree brother brother Thomas and I Clarence Thomas is an originalist we will disagree as to what the original meaning was now in that but we know what we're looking for anyway I I will conclude on the on the unhappy note that unless we turn back from this approach to the Constitution I I really think we will we will destroy the Republic or destroy the value of a written constitution and a written Bill of Rights because ultimately if the Constitution does not bear a fixed meaning they can be figured out by lawyers then its meaning will be determined by who do you think lemon hardy I mean the people have come to figure out that I don't know anything with it I haven't learned at Harvard Law School anymore about whether there's a right to or whether there ought to be a right to die then they know I mean I don't know anymore than Joe Sixpack this is not a lawyer's question the people have come to figure that out and when they come to figure it out they they also figure out that they should select their Supreme Court justices not on the basis of whether these people are good lawyers because they're not doing lawyers work anymore they should rather select them on the basis of whether they agree with them on whether there ought to be a right to this that and the other thing and that is what our confirmation hearings have you know I was gonna say deteriorated too but it's not a deterioration if that is what the Supreme Court is doing that is what those hearings ought to be like it's inevitable though that people will take that back to themselves and it is the people whom the Senators represent in those hearings and they will ask one nominee after year do you think there is a right to this in the Constitution and he says I don't think there you don't take carries what why I certainly think there is and my constituents think there is and if you don't think that right is not in that Constitution I'm sure you're not going to vote to confirm you now what about this other right you think that's really quite quite mad conducting a mini plebiscite on the meaning of the Constitution of the United States every time you select a new Supreme Court justice but it will inevitably be that way and it ought to be that way if the Supreme Court is not doing the work of lawyers which is doing the work of taking a text and interpreting it the way lawyers interpret texts to discern what was its original meaning so I am not at all hopeful that it's possible to get back to where we were really it is it is such an alluring enticing philosophy to believe that the Constitution means whatever you think it ought to mean how do you talk somebody out of that it's a wonderful wonderful thing and judges who are non originalist who think the Constitution means what it ought to mean they go home happy every night really they never make a decision they don't like I make a lot of constitutional decisions I don't like I was the fifth vote on the flag-burning case the way because I am NOT a strict constructionist my my reading of the First Amendment is that it protects freedom of expression not just freedom of I mean if you interpret the First Amendment literally this Congress shall make no law abridging the freedom of speech or of the press well I guess handwritten letters are neither speech and or press so the government ought to be able to censor handwritten letters right of course not that strict construction but it's silly construction you don't interpret a text that way I interpret the First Amendment when it says speech and press it is using the figure of speech called synecdoche you name a part to represent the whole as in I see a sale speech and press represent expression anyway that's the way I read read the First Amendment so I said if somebody burns his own flag it's his flag he's doing it to show contempt for the government contempt even for the flag he's entitled to express contempt for the flag so I was the fifth vote that didn't make me happy I do not like I used to say bearded people who go around burning who go around burning American thing and they can I came down to breakfast the next day and my my wife the lovely Maureen who you know was a sharp Irish tongue is is standing at the stove humming Stars and Stripes forever but but you don't have to put up with that kind of stuff if you're not an originalist because the Constitution means what you want it to mean it's wonderful and it's very hard to talk people back out of it I've tried to talk you back out of it tonight I hope you will try to talk your friends back out of it and and you don't have to call it a dead Constitution let's call it the enduring Constitution thank you

Channel: Acton Institute

Views: 60,189

Keywords: Antonin Scalia, Justice Scalia, On Interpreting the Constitution, Acton Institute, Textualism, Jurisprudance, Supreme Court, United States Supreme Court

Id: aXSGDXbc9ZA

Length: 41min 38sec (2498 seconds)

Published: Tue Nov 29 2016