The University of Colorado Law School hosted its highly regarded, annual John Paul Stevens Lecture on Constitutional Law, through its Byron R. White Center for the Study of American Constitutional Law in Boulder, on Oct. 1. There have been four such lectures since its inception and this year’s was likely the most provocative: Justice Antonin Scalia.
With more than 1,500 people in attendance and having been lucky enough to score a ticket, I was hoping for biting wit, provocative thought, and a no-holds-barred approach. Justice Scalia did not disappoint. It’s hard to imagine a speaker as different from the namesake of the lecture series, John Paul Stevens. Scalia even mentioned at the outset that Stevens “would agree with nothing” he was about to say. Then, it was straight down to business, Nino-style.
Justice Scalia is undeniably a force in American jurisprudence.
He matches an encyclopedic knowledge of the Constitution and its noble history, with a crystalline clarity of thought and expression. His reverence for the Constitution is unparalleled. But despite a towering intellect, he doesn’t seem to take himself too seriously. He clearly has fun on the job, too.
As The Docket’s token conservative, of course I found myself agreeing with just about everything he said. But to my surprise, Scalia got abundant laughs and applause even in what (to be kind), was a “tough room” for someone of his viewpoint: CU-Boulder’s Macky Auditorium.
He talked about the timeless struggle between those who view the Constitution as a “living document,” subject to broad interpretation, and evolution, depending on what seems fair at the time, and those who, like him, see it as a “super law,” immutable in meaning, intended by the Founders to be strictly applied based on the meaning of the words they used, in the context of when they used them to write and ratify the law.
An “originalist,” Scalia explained, does not attempt to divine the intent of the Founders. He said he “couldn’t begin to know” what was in the minds of the writers of the Constitution, or the minds of the state legislators who ratified the document. Instead, he focuses on the words, applying the meaning they had at the time the Constitution was ratified. The document, like any law, means what it says. It does not “evolve.” It can only be changed by amendment, not just by what a judge might “wish it” to mean.
He admitted the “living Constitution” approach is “seductive” to judges. It appeals to their desire to be “fair.” But taken to its end, this approach inevitably results in loss of liberty. In his view, a Court that can “find” new rights that have evolved in the Constitution can just as easily erode our rights if they feel they are no longer amenable to our evolved modern life.
He cautioned that if judges can decide cases on what they “think the Constitution ought to be,” we “might as well not have a Constitution.” If it can be made to mean anything, he contended, in the end it will mean nothing.
Scalia believes the Founders created the Constitution as a bulwark against what they saw as that irresistible tendency of government to expand to dangerous levels of power.
Of course, the “living Constitutionalists” deny they are misusing the Constitution to “create” new government powers, or to either “find” or limit individual rights based on current ideas of fairness. His ideological adversaries on the Court would argue that they are merely applying the Constitution to 21st century issues by interpreting the words of the Constitution according to modern standards. This, they contend, allows the Constitution to evolve as America has evolved.
Justice Scalia answered this contention. “An originalist,” Scalia said, “unlike the living Constitutionalist,” understands that “not everything bad is unconstitutional.” He understands that the Supreme Court’s job is not to “right all wrongs” or serve as final arbiters of fairness. An originalist constrains his approach to deciding how the language of the Constitution applies to the given fact pattern brought before it. He said an originalist merely has to “figure out” how the wording of the First Amendment might apply to new technology or new social or political issues. If there is no clear wording in the document? Then, he said, “you take your best shot. Originalists can have fun, too!”
He sees the originalist approach as neither “conservative” nor “liberal,” illustrating his point with a story.
He reminded the audience that he was the fifth vote in favor of an individual’s contention that burning an American flag he owned was “protected speech” under the First Amendment. The conservative critics of that decision included his own wife; the day after the decision was announced, he came down for breakfast to hear her sardonically humming “It’s a Grand Old Flag.”
During questions, Scalia’s acerbic wit continued to shine. He declined to answer a question on Colorado’s legalization of recreational marijuana. He dryly pointed out that he “couldn’t comment” because then he’d “have to recuse” himself. Yet in the next breath, he looked at the questioner with a wry smile, and said, “but there is something known as the Supremacy Clause.” The audience erupted in laughter and applause.
Another questioner asked Scalia whether he thought his sharply-worded dissents caused a “decline in civility” among the justices. His answer?
When the laughter died down, he reminded the questioner that the justice with whom he most frequently (and vehemently) disagrees, Justice Ruth Bader Ginsburg, remains his best friend on the Court.
Clearly, the justices understand that even strident disagreement need not be “uncivil.”
In fact, it is that disagreement, the high tension between competing viewpoints on the bench, that in his view keeps the Constitution powerful.
Though he is clearly in the minority as a true Originalist, and even voiced doubt that his view would survive the long march of the judiciary toward the “living Constitution” approach, he cheerfully bears the burden of continuing the fight to the very end. Love him or hate him, his “Happy Warrior” approach to his work is inspiring.
It was also refreshing that with universities across the country terrified to host any speakers who might be perceived as conservative, (and thus definitionally offensive to the liberal apparatchiki riddling academia today*), that my alma mater had the grit to bring Justice Scalia to the Stephens Lecture series and turn him loose. It made me proud to be a “Buff.”
By Doug McQuiston, who has been a lawyer in Colorado for more than 30 years. He received his BA, 1977, and JD, 1981 from the University of Colorado. He is a member, contributing writer, and past chair of The Docket Committee.