Justice Scalia on Originalism
October 26th, 2004 at 10:55 pm by David FarrarI attended the speech and coffee at the US Embassy by Justice Antonin Scalia. The room was packed with legal and political people such as Sir Geoffrey Palmer.
Justice Scalia is a brilliant speaker. He made his case for Originalism with great humour, but very strong cogent arguments.
Scalia made a very strong case that Judges should interpret the Constitution as it was intended when it was written, and that if one wants laws to reflect society’s changing morals, then why have five lawyers decide what they are, instead of legislatures or the public.
An example he gave was whether the death penalty is unconstitutional as some argue it is a cruel and unusual punishment banned under the US constitution. Scalia pointed out that when passed, not only was the death penalty applied in every state, it was basically the only penalty. Steal a horse – you hang. They did not have prisons, just jails to hold you before you were hung. So how can you argue that they intended the constitution to outlaw the death penalty?
Scalia made the point that he does not see the court as one which splits on conservative vs liberal lines, pointing out that as an originalist he has voted for example to allow flag burning, when personally he would have liked to have sent the scruffy long haired lout in the case to jail, but he could not do so.
Again Scalia made the point that everytime the Supreme Court invents a right, such as to abortion, or to assisted suicide etc, it removes that issue from the people through their state of federal legislatures. He said today the XIXth amendment giving women the vote would never be passed, as the Supreme Court would probably have ruled without the amendment that there was a constitutional right for women to vote. His point being isn’t it better women got the vote through a constitutional amendment, not the Supreme Court of a few lawyers.
One silly person asked him if he would back Originalism, if say the US had not passed the XIXth amendment. Scalia pointed out that the fact they did, shows Originalism did work (up until around WWII), but also pointed out that even if the XIXth amendment had never been passed, he would guarantee that every state would have given women the vote by now anyway.
Scalia agreed that one can point to good outcomes from a non-originalist Supreme Court, but that one can have good outcomes from a benevolent dictator also. But why should the Supreme Court decide on behalf of all of America what is moral or acceptable?
There was one question on Bush vs Gore, which the Justice was fairly aggressive about, telling the questioner he should get over it. He did make the point that the Supreme Court vote on the main issue was 7-2, not 5-4. And that the Florida Supreme Court had made such a hash of it, he felt it had breached the constitutional requirement that the state legislatures, not the courts, shall determine how electoral college electors are selected.
On the issue of whether the Supreme Court should have heard the case, he almost dripped sarcasm as he asked could anyone argue the election of the President it not important enough, and did anyone think that letting the Florida Supreme Court decide, was somehow a better course of action?
I wanted to ask him about whether he saw anyway to get the lower courts out of the election process, with the Kerry and Bush campaigns in the US having hired 40,000 lawyers for election day to run off to court in marginal counties and states to try and tilt things their way, but decided not to as he seemed not too keen on election issues.
Sir Geoffrey asked a silly question also on whether he was concerned that NZ didn’t not only have no separation between executive and legislature, but also no separation between judiciary in that they can not over-rule the legislature. Scalia sensible swatted it away by saying he is not here to tell other countries how they should run their legal systems.
Justice Scalia is known for not liking video and/or audio recordings of his speeches. Towards the end he got somewhat agitated to see a video camera at the back of the hall, but was reassured it was just a link to the overflow room.
Overall I was hugely impressed. A great opportunity to meet the man who might be the next Chief Justice of the United States. The bit I enjoyed the most was when he referred to the other originalist on the court, Clarence Thomas, as “Brother Thomas and I”. Very funny.
No tag for this post.
October 27th, 2004 at 1:28 am
I saw him in Auckland, and was similarily impressed.
Though at one stage he alluded to the idea that bad thought can sometimes be seen as correct, in the same way that a stopped watch is correct twice a day.
Had I been less in awe, and had more of a desire to act the prat in public, I might have pointed out that for Originalists the clock stopped in 1788……….
Vote:October 27th, 2004 at 9:08 am
Yes he was very good. I didnt see you there though.
Vote:October 27th, 2004 at 9:12 am
Originalism is discredited by the Dred Scott case, when the Court ruled that black men were not ‘persons’ in the minds of the original founders of the constitition. So initial steps to resolving the slavery issue might have have happened before the civil war which of course resolved the slavery issue for once and for all. But at what cost did that decision come , a million dead ?,
Vote:And most modern commercial practices would be impossible to resolve if the criteria was what was originally thought. The court has just heard a case of a pontiac dealer using what is called a ‘yoyo’ finance deal, where the buyer gets the car but a couple of days later has to come up with more money for the deal to be final, ie assigned to a finance company. What would Thomas Jefferson say about that
October 27th, 2004 at 9:40 am
I am just wondering about this bit from your post, David:
“One silly person asked him if he would back Originalism, if say the US had not passed the XIXth amendment. Scalia pointed out that the fact they did, shows Originalism did work (up until around WWII), but also pointed out that even if the XIXth amendment had never been passed, he would guarantee that every state would have given women the vote by now anyway.”
I wonder what his view is about slavery. When the Constitution was framed, slavery was in existence. Does he think that slavery would have been abolished by the States without the Civil War?
There are holes in any judicidal doctrine, and so I just hope the US Supreme Court is never totally packed with people like Scalia – just as I would never want it packed with liberals, either (insofar as I give a damn about it, that is).
Vote:October 27th, 2004 at 9:44 am
Ztev – Dred Scott was not an originalist case as Taney read several concepts into the constitution that weren’t actually there. Hence it is closer in method to Roe versus Wade, which was why Bush was mentioned that case in the second presidential debate.
As for the yoyo finance deal, if it is what both parties agreed to then the originalist interpretation is what both parties agreed to, no?
Vote:October 27th, 2004 at 9:52 am
Yes Justice Scalia was very entertaining, though I wonder if America would still have the Jim Crow laws if not for the Warren Court, as clearly, segregation, and indeed, even slavery, was constitutional when the constitution was written.
Re your enjoying his comment about “my brother Thomas” made me wonder if you had spent much time in our Court of Appeal? The judges there constantly refer to each other as “my brother such-and-such.” I have waited in gleeful anticipation to see if they refer to “my sister” when Susan Glazebrook has been on the Bench but somehow they always avoid that, even though I’ve heard her talk about her “brothers.”
I noticed in our new Supreme Court’s first case the other week that Justice Tipping referred to “brother” judges but not his sister Dame Sian.
Vote:October 27th, 2004 at 11:03 am
I know many legal and political people who would object to being described as “like Geoffrey Palmer”!
Vote:October 27th, 2004 at 11:27 am
The ‘Brother’ stuff dates back to fuedal times(or even earlier) when Monarchs referred to each other as ‘dear brother’, for paid judges in the 21st century to continue to ape such absurd conventions is beyond belief.
Vote:The women getting the vote by constitutional amendment
October 27th, 2004 at 11:29 am
I too saw him in Auckland. I liked what he had to say about how a strict single original view of the constitution limits the politicisation of the appointment of US Judges (scary) However it doesn
Vote:October 27th, 2004 at 11:47 am
Justice Scalia on Originalism
Vote:October 27th, 2004 at 11:47 am
Justice Scalia on Originalism
Vote:October 27th, 2004 at 12:07 pm
Bush doesnt refer to the Dred Scott case when bringing up RoevWade because it wasnt ‘originalist’ but its because the court didnt define black people as persons much as abortion cases dont see the foetus as a person either.
As I recall, Dred Scott decision came in 2 parts, the first was DS had no standing to sue ( not being a person as the constitution defined it) and that should have been the end of it, but Taney wanted to get rid of the Misssouri Compromise so they invoked property rights to do that.
Taney clearly wrote, when referring to whether a black was a person ,
“It is too clear for dispute, that the enslaved African race were not intended to be included, and formed no part of the people who framed and adopted this declaration; for if the language, as understood in that day, would embrace them, the conduct of the distinguished men who framed the declaration of independence would have been utterly and flagrantly inconsistent with the principles they asserted; and instead of the sympathy of mankind, to which they so confidently appealed, they would have deserved and received universal rebuke and reprobation…”
You cant get more originalist than that !
Vote:October 27th, 2004 at 12:18 pm
“Scalia pointed to how the demos there are taking power through politicised judges and thus there is a breakdown between the separation of the executive and the judiciary.”
The demos taking power ?
Vote:The Constitution says the President shall appoint with the ‘advice and consent ‘ of the Senate. The Demos in the senate are just using their constitutional rights.
You forget the US system is ’3 separate but equal’ branches, so the President has sometimes a lot less personal power than say the British PM, who has taken the powers of the monarch, to appoint judges, even Bishops
October 27th, 2004 at 12:41 pm
It was Scalia talking. He felt that the Demos (through their elected representatives) were talking the power back. Sorry I should have qualified that.
Vote:October 27th, 2004 at 1:09 pm
Ztev – you are wrong. When Bush mentions Dred Scott, he is talking about Roe versus Wade. See for example the http://slate.msn.com/id/2108083.
As for your subsequent statement that the Dred Scott judgement was originalist, the paragraph you cite is not originalist because it does not refer to anything in the constitution. There is nothing in the constitution that prevents blacks from becoming citizens and so your argument that Taney was originalist is just plain wrong.
Vote:October 27th, 2004 at 1:22 pm
Originalism in the sense La Scallia defines it denies not merely a “living constitution” but a “living society”.
The supreme court should give considerable (and arguably preeminent) weight to the actual words of the constitution. Further it should interpret those words according to their original meaning (the word “presently” in a 16th century law should be as interpreted “immediately”). That does not, however, mean that they should be interpreted in the light of the social values of the time they were written.
The words “Person”, “Cruel” and “Unusual” had the same meaning when the constitution was framed as they do now. What has changed is our view of who is a person or what forms of punishment are “cruel and unusual”. A literal interpretation of the constitution is not violated by applying contemporary values to those questions.
Had the framers of the consitution seen fit to list permitted and prohibited punishments or to declare that the provisions of the Bill of Rights applied only to whites then constitutional amendments would have been necessary to outlaw capital punishment or grant non-whites civil rights. But they didn’t. They deferred thoe decisions to future judges. They did so knowing that those future judges would apply the values of their own time.
Vote:October 27th, 2004 at 1:43 pm
Kiwi Bob – I was up the very front, where the CIA stooges get preferred sitting
ztev – originalism applies to constitutional interpretation, not contract law.
Jordan – As you point out the Supreme Court did not outlaw slavery. President Lincoln did. The Civil War was not so much about slavery but whether states can secede.
David – I saw the reference to Brother Thomas as referring to the fact thet he is the only other originalist on the Court, along with Scalia, and that they are a small minority. I think he enjoyed the double meaning.
I am sure the Jim Crow lawas would have gone by now. As Scalia said a dictator can produce good outcomes. What we don’t know is when legislatures would have abolished them if there was not the “escape” option of the Supreme Court.
Grant – indeed
Conor – yes that is a key part I did not mention. That having non-origanlists does politicse terribly the appointment process. The reason it hasn’t in NZ is because the legislature here is supreme and can over-ride aocurt rulings it does not like, as we see in the Foreshore Bill.
You said “I would ask, would he rather us intrust our views on how society be judged to a bunch of white landowning elite of British bashers?”
The answer lies with constitutional amendments and legislatures.
ztev – The Democratic Senators have the constitutional right to vote against a Justice. But where is their constitutional right to now even alloww a nominee to be voted on by the Senate?
Vote:October 27th, 2004 at 2:00 pm
PM: I said Bush sees Dred Scott as a wrong decision of the Supreme court the same way he sees RoevWade as a wrong decision. Just he wont say that RoevWade is his litmus test,
Originalist refers to the ‘thinking’ of those who wrote the constitution , not the ‘original words.’ The Court could hardly come up with new words of their own to replace those words written down, but they have a ‘doctrine’ to justify what those words mean now.
Vote:Taney specifically invokes the original thinking of the founders and as such invokes the originalist doctrine
Scalia himself refers to ‘cruel and unusual’ in the context of the 1770′s, where capital punishment was common place. is he referring to the original words or the thoughts of the original
men who wrote this clause?
In US today capital punishment could be seen as ‘unusual’ so just being textual isnt enough for the originalism doctrine
October 27th, 2004 at 2:32 pm
Ztev – originalism refers to the idea that the words of the constitution should be interpreted as they were when originally formulated. It does not and never has meant replicating the mindset and ideas of the people who wrote the constitution (and its amendments) regarding matters that do not appear in the constitution, Hence your description of Taney as an originalist is just plain wrong.
Vote:October 27th, 2004 at 2:38 pm
What about Eldred v Ashcroft, the case about the copyright term extension? It’s pretty convincing (to me anyway) that the `original intent’ of the constitution is to place a limit the power of the congress to grant intellectual monopolies of (functionally) infinite duration. Larry Lessig, the lawyer who argued against the term extension, bet on conservative judges like Scalia and their commitment to originalism. They surprised him though, and now he reckons he should have framed his argument to emphasise the harm done by perpetual copyrights:
http://www.legalaffairs.org/issues/March-April-2004/story_lessig_marapr04.html
Vote:October 27th, 2004 at 2:53 pm
Considering the latest extension was in response to an international treaty which brought the US in line with other nations, lessig’s argument that the latest extension was part of a perpetual monopoly is weak.
Vote:October 27th, 2004 at 3:18 pm
DF: The Democrat senators are following the constitution. The Senate could tomorrow change its rules and allow a vote on the Senate floor on Judge X ( if he hasnt been appointed by Bush over a long weekend) but hasnt done so. The Senate is just using the rules that apply to every motion.
Vote:Interestingly every Military officer has to be confirmed as well, which produces a mountain of paperwork.
By US standards we are a virtual dictatorship
October 27th, 2004 at 3:38 pm
The FTA between US and Australia then makes Oz copyright in line with the US ??
Vote:But as far as the International Court goes, doesnt apply to US citzens.
So much for international agreements being bought in line
October 27th, 2004 at 3:52 pm
…”words of the constitution should be interpreted as they were when originally formulated…”
How else can they be ‘interpreted’ without referring to the original thoughts. Is anybody still alive to tell you. No.
Vote:Scalia says cruel and unusual would be impossible according to an 18th century person.
Taney says a negro couldnt be a person at the time of the declaration of independence, you would be laughed at
October 27th, 2004 at 4:15 pm
Ztev – the treaty concerned about copyrights is the Berne convention which Oz, NZ and the US are signatories to. The US is not subject to the ICC because it does not want to be. Thus there is no hypocrisy involved.
As for the originalism dispute, there is no provision in the constitution for prohibiting certain people from ever acquiring citizenship. Thus Taney could not be originalist in asserting that blacks can’t be citizens (not persons as you falsely suggested as there had been free blacks when the consitution was signed).
There are a number of valid criticisms of originalism that can be made. See for example:
http://en.wikipedia.org/wiki/Originalism.
Claiming that Dred Scott was originalist only indicates that you don’t know what you are talking about.
Vote:October 27th, 2004 at 4:45 pm
The Berne convention doesn’t require a term of 95 years / life+70 (as the latest US term extension provides). If it did, NZ would be in breach of it, and we aren’t.
However, one of the arguments made for the US term extension was to bring it into line with the EU copyright duration, which was longer.
Vote:October 27th, 2004 at 4:51 pm
“The United States only provided copyright protection for a fixed, renewable term, and required that in order for a work to be copyrighted it must contain a copyright notice and be registered at the Copyright Office. The Berne Convention, on the other hand, provided for copyright protection for a single term based on the life of the author, and did not require registration or the inclusion of a copyright notice for copyright to exist. Thus the United States would have to make several major modifications to its copyright law in order to become a party to it. At the time the United States was unwilling to do so. The UCC thus permits those states which had a U.S.-style system of protection for fixed terms at the time of signature to retain them. (Eventually the United States became willing to participate in the Berne convention, and change its national copyright law as required, and in 1988 it became a party to the Berne Convention.)” – Wikipedia
FTA US-Australia
“In the copyright area, each Party must provide copyright protection for the life of the author plus 70 years (for works measured by a person’s life), or 70 years (for corporate works). ”
Life of the author PLUS 70 years, who is out of step with the Berne Convention now!
Vote:October 27th, 2004 at 5:29 pm
Peter , I have your reference here :-
Originalism is actually a family of related views. One form of originalism emphasizes the original intentions of those who drafted the constitution. In the American context, this would be the group of “Founding Fathers” that drafted the United States Constitution at the constitutional convention in Philadelphia. Another form of originalism emphasizes the original meaning of the constitution as it would have been understood by ordinary citizens in the historical period during which the constitution was proposed, ratified, and first implemented.
Taney specifically refers to the ‘founding fathers’ form of originalism in his written judgement, while Scalia uses the ordinary person at the time version in his speech
Vote:According to the definition of the reference you supply both examples back me up as far as what originalism is
The ‘person’ arguement of Taney is important now,because that is where Bush hangs his hat as regards RvW. This is where Dredd Scott had no standing to argue his case, not being a person.
I dont care what other arguements Taney used to invalidate the Missouri Compromise, it hardly matters today since all slaves are free, and has no bearing on RvW.
October 27th, 2004 at 7:25 pm
Peter , I have finally realised why we have been in this drunken dance over originalism.
Vote:Taney in his standing of a negro to sue decision, was not using the text of the constitution, since court procedure isnt mentioned in the constitution at all. But his use of the doctrine of originalism still applies since we are interested in Bushes reasons for linking it to RvW where a foetus isnt a person either
October 29th, 2004 at 12:39 pm
Last thoughts:
There is no way to put the genie back in the bottle over lawyers getting involved in elections.
The SCOTUS didnt hold back, in fact it stooped counts in progress, where as in NZ, a recount is actually held under a judges supervision, and has changed the results in recent times
The US makes its own noose since partisan people are openly appointed /elected to run the elections, so the only way to get them to obey the written law is to go to court.Like the right to vote overides the thickness of the registration form( yes this has just occurred)
Vote:NZ (and Australia) have it as part of the public service and keep party officials out, except as ‘scruiteneers’ on election day.
National once in power does fiddle with the registration process, trying to exclude people who have moved in the last month etc. I can well remember trying to get a registration form before the rolls closed in the 90′s only to be told the PO had ‘run out’. registration is now continous and the state sees it as its duty to seek out everybody and keep lists up to date. Some old rules seem allmost anti – democratic, like having to live for 3 months in an area before being allowed to register