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The Originalist

Justice Antonin Scalia

January 2011

Last October marked the 24th anniversary of Justice Antonin Scalia's appointment to the U.S. Supreme Court. Well known for his sharp wit as well as his originalist approach to the Constitution, Justice Scalia consistently asks more questions during oral arguments and makes more comments than any other Supreme Court justice. And according to one study, he also gets the most laughs from those who come to watch these arguments. In September Justice Scalia spoke with UC Hastings law professor Calvin Massey.

Q. How would you characterize the role of the Supreme Court in American society, now that you've been a part of it for 24 years?
I think it's a highly respected institution. It was when I came, and I don't think I've destroyed it. I've been impressed that even when we come out with opinions that are highly unpopular or even highly-what should I say-emotion raising, the people accept them, as they should. The one that comes most to mind is the election case of Bush v. Gore. Nobody on the Court liked to wade into that controversy. But there was certainly no way that we could turn down the petition for certiorari. What are you going to say? The case isn't important enough? And I think that the public ultimately realized that we had to take the case. ... I was very, very proud of the way the Court's reputation survived that, even though there are a lot of people who are probably still mad about it.

You believe in an enduring constitution rather than an evolving constitution. What does that mean to you?
In its most important aspects, the Constitution tells the current society that it cannot do [whatever] it wants to do. It is a decision that the society has made that in order to take certain actions, you need the extraordinary effort that it takes to amend the Constitution. Now if you give to those many provisions of the Constitution that are necessarily broad-such as due process of law, cruel and unusual punishments, equal protection of the laws-if you give them an evolving meaning so that they have whatever meaning the current society thinks they ought to have, they are no limitation on the current society at all. If the cruel and unusual punishments clause simply means that today's society should not do anything that it considers cruel and unusual, it means nothing except, "To thine own self be true."

In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don't think anybody would have thought that equal protection applied to sex discrimination, or certainly not to sexual orientation. So does that mean that we've gone off in error by applying the 14th Amendment to both?
Yes, yes. Sorry, to tell you that. ... But, you know, if indeed the current society has come to different views, that's fine. You do not need the Constitution to reflect the wishes of the current society. Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn't. Nobody ever thought that that's what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don't need a constitution to keep things up-to-date. All you need is a legislature and a ballot box. You don't like the death penalty anymore, that's fine. You want a right to abortion? There's nothing in the Constitution about that. But that doesn't mean you cannot prohibit it. Persuade your fellow citizens it's a good idea and pass a law. That's what democracy is all about. It's not about nine superannuated judges who have been there too long, imposing these demands on society.

What do you do when the original meaning of a constitutional provision is either in doubt or is unknown?
I do not pretend that originalism is perfect. There are some questions you have no easy answer to, and you have to take your best shot. ... We don't have the answer to everything, but by God we have an answer to a lot of stuff ... especially the most controversial: whether the death penalty is unconstitutional, whether there's a constitutional right to abortion, to suicide, and I could go on. All the most controversial stuff. ... I don't even have to read the briefs, for Pete's sake.

Should we ever pay attention to lawyers' work product when it comes to constitutional decisions in foreign countries?
[Laughs.] Well, it depends. If you're an originalist, of course not. What can France's modern attitude toward the French constitution have to say about what the framers of the American Constitution meant? [But] if you're an evolutionist, the world is your oyster.

You've sometimes expressed thoughts about the culture in which we live. For example, in Lee v. Weisman you wrote that we indeed live in a vulgar age. What do you think accounts for our present civic vulgarity?
Gee, I don't know. I occasionally watch movies or television shows in which the f-word is used constantly, not by the criminal class but by supposedly elegant, well-educated, well-to-do people. The society I move in doesn't behave that way. Who imagines this? Maybe here in California. I don't know, you guys really talk this way?

You more or less grew up in New York. Being a child of Sicilian immigrants, how do you think New York City pizza rates?
I think it is infinitely better than Washington pizza, and infinitely better than Chicago pizza. You know these deep-dish pizzas-it's not pizza. It's very good, but ... call it tomato pie or something. ... I'm a traditionalist, what can I tell you?

Legally Speaking is a series of in-depth interviews with prominent lawyers, judges, and academics, co-produced by California Lawyer and UC Hastings College of the Law.

To view the full video visit our Legally Speaking page.

Reader Comments

Lenny P Wallbrook - January 3, 2011
He's got it backwards. Our Constitution limits the rights of government by spelling out what the government can do, not what human people can do; it does not grant rights to citizens on behalf of the government. Human rights are unalienable rights; what part of this does he not understand?
Sue - January 3, 2011
So, Scalia doesn't think the word "person" in the Fourteenth Amendment applies to women, but he does think the a corporation is a person under the First Amendment. Yeah, he's quite the originalist.
Robert Moss - January 4, 2011
Scalawag---err, Scalia is a textualist (strict constructionist) when that will lead to a decision matching his presonal agenda, and is guided by more ambiguous "intent" analysis when that will fit his agenda. Virtually every Supreme Court opinion starts by stating the principle that we start with the text. In the text of the 14th Amendment, "Person" is unambiguous, and means the same thing that it meant in 1868. The intent or purpose of the framers and ratifiers is in this case immaterial---the same as if a legislature accidently passes an appropriation for an amount 1000 times what they thought they were approving (such things have happened). They can't say, "Oh, it doesn't matter, we didn't mean THAT." No, they have to correct the error and vote again.
Jimbo2K7 - January 4, 2011
This man is a disgrace. He actively promotes an authoritarian agenda in which the rights of the individual have little meaning. He has done untold damage to our democracy.
Ryan Werner - January 4, 2011
What disturbs me most about "originalists" like Scalia is the certitude that informs their views. It must be nice to inhabit a world where "all the most controversial stuff" is so black and white that you "don't even have to read the briefs." Given his religious beliefs perhaps Scalia is simply in the habit of always looking for actual answers, rather than core principles, in documents written by people long dead. But, it is arrogant to presume -- as originalists by definition do -- that the framers of our Constitution never intended it to apply to circumstances unimaginable in their own time. In both respects Scalia cheapens the document he claims to defend. Yet, like so many other men in robes throughout the world who insist on the correctness of their literal interpretions of old texts, Scalia is cocksure of the superiority of his convictions.
Mark J - January 4, 2011
So in love with himself.
Owen Glendower - January 4, 2011
"He actively promotes an authoritarian agenda in which the rights of the individual have little meaning." ...as in Heller v. D.C.?
BILLY Stack - January 4, 2011
The Supreme Court of the U.S. is a highly respected institution. Because like myself most people believe if they ever had to go for help on a legal issue, they could take it all the way to the Supreme Court. Now the reality sets in. It isnt that easy is it ? The obvious answer is no. But we all still like to think we could get help from the 9. I find Scalia a brilliant man, and so are all the other's. I had the Honor of meeting Sandra Day OConnor. In 2002. And i would relish the chance at talking at length with Justice Scalia on many issues. I wonder as a non lawyer, but someone who is very involved in the law and have in fact had to represent myself at various stages in the courts. Pro Se i have argued at the SJC, The Massachusetts Appeals Court and i have done very well , mostly for the fact of all the reading i do on the law since the introduction of the internet.And Personal Computer's , what wonderful tools they are. I wonder if the Justices put as much time into thinking about various issues as we all do. Americans. The ones who have to live with these various issues every day of our lives.When we are wronged. This thinking and living with these issues make us experts in a way. We study the laws , we research we find meaning in all of this. I am glad there is an originalist on the Court. Because all that i have been taught since i was young has stuck with me. I dont want anyone changing the rules and the laws now or anytime in the near future. i wish there were more originalist's on the court. and i wonder if it is time in America that we expand the federal courts and the number of sitting justices on the courts and especially the Supreme Court. I think it is time the number of Justices on the Supreme Court is expanded to reflect the population in America, now about 320 million americans. There is still a lot of work to do and a lot of laws that do not need to be altered in anyway with some ultra left wing liberal decisions that affect ADVERSELY the majority of Americans in any perverse sense As a SWM i dont get special rights.
Partial_Mitch - January 4, 2011
In regards to the 14th Amendment, the text reads as follows: "Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." I see "Any" in an awful lot of places with no qualifications or limitations. Any Law, Any State, Any Persons. Therefore a strictly literal interpretation means that this applies to any citizen regardless of gender, sexuality, race, religion, etc.. To say that, "Nobody ever voted for that," is akin to an anti-gun lobby claiming the 2nd Amendment applies only to flintlock muskets. After all, the Founding Fathers certainly were not voting on modern weapons were they?
Mike Long - January 4, 2011
Scalia (and the Roberts court) are, of course, MOST famous for appointing George W. Bush (over the wishes of the People). Most, unfortunately, are not aware of the consequences of their other decisions. To name a few, Heller vs. D.C. ensures that big-city dwellers can never again live without constant fear. Follow this with the ruling a year ago that no one will ever again be elected to any influential political office who has not been appointed by, or at least endorsed by, Big Corp. (Good bye, democracy.) Then, with the left-leaning cities in too much fear to take to the streets, these unabashed reactionaries will be able to enact whatever legislation and withdraw whatever regulation and restriction their corporate masters tell them to. The Patriot Act is only a SMALL sample. The damage that this court has wrought and will wreak upon the U.S. is more that a hundred "W"s could ever inflict. Thank god I had the foresight to leave that place before its imminent total collapse.
m perez - January 5, 2011
Wow What Concise Eloquence: "Persuade your fellow citizens it's a good idea and pass a law. That's what democracy is all about. It's not about nine superannuated judges who have been there too long, imposing these demands on society." What a beautiful democratic summary coming from a person whose heritage would popularly lead you to expect otherwise. Scalia is a devout Catholic, He's a person of faith, OH NO...!!!, and he's also a Scicilian - if that doesn't raise a few questions of how we would expect him to think of how things should be done. Please, upon his death, tell the lapidary to engrave these words on his tombstone; please, let the young in our legal professions in whose heart is the spirit of truth and freedom to engrave these words in their minds and hearts, and make it their pledge in life.
ahayes - January 5, 2011
Oh, please, enough of the "musket" argument. By that same logic, the First Amendment would not apply to radio, television, or the internet--or possibly even to T-shirts. As for those of you who decry Scalia's opinions as simply reflecting his personal predilictions: so your view of what the Constitution means does not? So Stevens', Warren's, etc. etc. views were firmly grounded in the Constitution, but Scalia views are not? Yeah, right. I have agreed with Scalia's views on the law in some cases, in other cases not, just as I have with many of the justices over the decades, with a few minor exceptions. As for other comments here: the government has no "rights", it only has powers. I happen to agree with Scalia that the Constitution is silent on many issues--it simply does not provide an answer to every question. Some issues are left to democratic processes; that is a key element of our system of government. The question is whether you prefer the tyranny of the majority or the tyranny of nine justices. Somehow, I get the feeling that people here would be more willing to live under the tyranny of nine justices so long as those justices were "their" kind of justices, and not like Scalia. And that seems to prove Scalia's case, better than I can, that some questions should not be decided by courts. As for whether a corporation is a "person" for first Amendment purposes, can I understand, then, that the New York Times and NBC News (owned by corporate mega-giant GE) have no First Amendment rights? Interesting.
Tony - January 5, 2011
Anybody with his taste in friends (Dick Cheney) should never.... ever .... ever..ever - ever be taken seriously. Chicago (pizza).
AmyZarGus - January 7, 2011
Scalia contradicts himself implicitly. He says we don't need the constitution to reflect the people's culture because the legislature does that. He says that the legislature can pass anti-discrimination laws because the constitution does NOT REQUIRE that we discriminate against women and gays. Think this ALL THE WAY through, though. When you prohibit discrimination against a group, you are effectively telling citizens that THEIR RIGHT to hire, fire, pay or otherwise interact with a person as they see fit based on their own chosen criteria is being curtailed. For example, we have no law against not hiring someone because they are very tall. We can do that. That's my right. I also have a right not to hire someone because I think they are stupid. However, the legislature TOOK AWAY my right not to hire someone because they are female. So, the question becomes: does the Constitution allow for a curtailment of that right? FOLLOW: IF Scalia maintains that women and gays are NOT citizens and persons under the 14th amendment because those groups were not the groups the writers and voters on the amendment "had in mind," then he also must logically concede the following: at the time the 14th Amendment was written and voted on, it was acceptable and common for white, straight men not to hire a woman because and only because she was a woman. Thus, basing hiring decisions on gender would have been among the "privileges and rights" men assumed they had when they were voting on the 14th Amendment. Thus, when they voted not to allow the government to curtail those rights and privileges, they essentially voted that the government could NOT force them to exclude gender from hiring decisions. So, when the legislature took away that right by saying no one (including white straight men) is allowed to base hiring decisions on a person's gender, they passed an overtly unconstitutional law. Scalia is wrong about women and gays being citizens, but if he's going to be wrong, I'd at least like him to have the courage of his convictions and be logically and internally consistent.
Etaoin Shrdlu - January 7, 2011
Too bad Scalia wasn't asked the following follow-up question: "Sir, can you show us where in the 14th Amendment it states that no state shall deny to any person the equal protection of the laws EXCEPT FOR WOMEN, GAYS AND LESBIANS?" Funny, I don't recall reading those six words when I studied it in law school, and my copy of the Constitution somehow omits them too. (It was published by American History Research Associates and R.R. Donnelley & Sons in 1982.) This, of course, is what's FALSE about "originalism", it's merely an excuse for conservatives to read into the Constitution anything they wish. Nor is this something new. Read Plessy v. Ferguson for another example of "originalism" in action! (That's the case which made segregation legal. Perhaps the most dishonest opinion the Supreme Court ever rendered!)
SteveLaudig - January 10, 2011
His greatest damage to any respect the court as an institution has was done in Bush v. Gore which, if Scalia, Thomas and O'Connor possessed ethics as large as their egos, they each should have recused themselves from considering. Scalia has much to apologize for.
J.D. - January 12, 2011
As discussed fairly well in Minor v. Happersett (http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&vol=88&invol=162), women were already citizens before the 14th Amendment. The 14th extended the Federal limitations to the states - protecting speech, due process, etc. at the state level. the only question is what those rights include - e.g. what is due process, do all citizens have a right to vote (answer is no in same case above).
Steve K. - January 22, 2011
I got it, Justice Scalia. Women and homosexuals are not "persons" within the meaning of the 14th Amendment. Corporations are. Thanks for nothing.
Patrick Ginsbach - January 23, 2011
I see where Justice Scalia has accepted an invitation from Rep. Michelle Bachman to talk to incoming Republican freshman Congressmen, to educate them on the Constitution. Maybe he should read the separation clause of the Constitution before he makes that trip to Bachman's seminar and heed his own words quoted in California Lawyer.
alex - March 23, 2011
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Stephen Stuart - October 21, 2011
Justice Scalia says, and I quote, "All you need is a legislature and a ballot box...Persuade your fellow citizens it's a good idea and pass a law." That's a fine a noble statement however when a law is questioned and ultimately ends up in the Supreme Court, it is up to nine tried and true justices to arrive at the constitutionality of the dispute. Their decision is ultimately based upon precedent and political and religious bias which we cannot condemn because they are indeed human. So what becomes of that noble statement about the Legislature and the people's laws? The Constitution is indeed a living document. Our sense of morality, whether we choose to follow its tenets or not, is an ever-changing societal matter and one that we can tolerate or not based upon our sense of ethics. But it is in fact a living force of nature and it is up to the Court to change with it. Unfortunately we don't have the pleasure of living in the 19th Century as Justice Scalia does. Perhaps he is the lucky one. So what Justice Scalia believes is either naive or the result of tunnel vision or, and I am loathe to say, pomposity. Be that what it may, Brooklyn pizza is far and away the best.
Mary Trumble - April 3, 2013
Whatever happened to the Equal Rights Amendment, you know, the one for WOMEN? It is past time to get this amendment on the books! HELP!

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