The day after the U.S. Supreme Court upheld the right to burn the American flag, Justice Antonin Scalia, part of the majority, wanted his breakfast.
He came into the kitchen and found his wife, Maureen, scrambling eggs and humming “It's a Grand Old Flag.”
“I don't need that,” said Scalia, a man considered the intellectual leader of the conservative wing of the Court.
Scalia shared that anecdote Friday in Omaha as he spoke to more than 600 alumni, faculty and students at the annual dinner for the Creighton University School of Law.
He used that story to illustrate the strengths of originalism, the theory of Constitutional interpretation according to the document's original meaning.
His after-dinner speech contrasted his preferred originalism with the theory of the “living constitution,” under which, he said, the constitution “changes — it means whatever the court today says it means.”
“The originalist, I can testify from sad experience,” he said, “often must reach a decision he doesn't like.”
In a charismatic and sometimes humorous presentation, Scalia argued the merits of originalism and what he called the flaws of the living constitution approach.
While living constitution adherents see the constitution as a document that has to grow and change, Scalia disagreed.
“The constitution is not a living organism, it's a legal document, for Pete's sake,” he said. “And if you think that the people who favor the living constitution want to bring you flexibility and the ability to change, think again. That's not what they're after, just the opposite ...
“My constitution provides for a very flexible system of government,” he said. “The cruel-and-unusual-punishments clause means today exactly what it meant when the people adopted it. And since the death penalty was not cruel and unusual punishment then, it is not now.”
But, Scalia pointed out, the death penalty has been repealed by some states.
“You can change your mind,” he said. “If the murder rate goes up, reinstitute it. That's flexibility ... If you (eventually) decide it's unconstitutional, that's the end of the game. From coast to coast, now and forever, the death penalty cannot be imposed.”
Scalia, who was confirmed to the court in 1986 with a 98-0 vote, said he probably couldn't get 60 votes today.
“The process has changed ... It has changed because the American people are not stupid.
“Under the living constitution, the Supreme Court is changing the document, term by term, modifying it, making it mean things it never meant before.
“Well, if that's what they're doing ... the most important thing is, ‘I want this new appointee to write the new constitution that I want.'”
Scalia said the originalism debate is an important subject for more than lawyers.
“It's something we should all be concerned about,” he said. “I hope we can get back to where we used to be. I'm not at all confident that we can.
“But like — who was it? — Frodo in ‘The Lord of the Rings,' even though you know you're going to get clobbered, it's a fight worth fighting.”
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