Justice Scalia on Originalism

I 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.

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