Justice Scalia Comes to UD!
As Gary alluded to couple weeks ago, Associate Supreme Court Justice Antonin Scalia came to the University of Delaware last Friday. He spoke in the new Center for the Arts, and was introduced by University President David Roselle and the chair of the Legal Studies, Sheldon Pollack. Roselle noted that Justice Scalia is "a part of the extended UD family," as his son, Major Scalia, is the officer in charge of Scholarships and Recruitment for Army ROTC here on campus.
I sat in the front row with several friends, including the aforementioned Gary. Unfortunately, no pictures were allowed to be taken except by the professionals (I wasn't about to take my chances on establishing press credentials. After all, I don't even consider myself a journalist, and neither should anybody else).
Justice Scalia spoke on the topic of originalism, his view on the Constitution. For a topic as potentially dry as Constitutional theory, Scalia's was a lively and engaging talk, as well as being quite funny. The man can crack a joke.
Scalia began with detailing how originalism is a view that is severly in the minority in recent history. He said that there are only two originalists on the Court right now, Clarence Thomas and himself, and he said he "doesn't know" about the two recent additions to the Court, but he thinks "one might be" an originalist.
To demonstrate how minority originalism has become since the Warren Court, he says he used to get the question "When did you become an originalist?" in the same tone one would be asked "When did you first begin to eat human flesh?"
Scalia mentioned that originalism used to be orthodox, and that judges "used to have to lie about twisting the Constitution. Now you don't...there was a certain honesty in that." He used the so-called 'evolving standard' of the cruel and unusual text in the 8th Amendment.
He detailed several of the arguments in favor of non-originalism, or the "living Constitution" view. He believes originalism to be more flexible, not in what the Constitution says, but in what the Constitution doesn't say. He used the example of the death penalty (paraphrasing here, because I don't know shorthand to be able to get everything in my notes fast enough): The Constitution doesn't say anything about it. Want to outlaw it? Convince your fellow citizens it's a bad idea and pass a law. Think outlawing it was bad? Convince your fellow citizens it was a bad idea and pass a law repealing it.
Originalism, according to Scalia, prevents the Courts from making policy. He referenced how bad an idea of 'nine lawyers sitting around and deciding what's a good law' is. Under originalism, the Court only decides if the law conflicts with another law, and how the two interact. He shunned the label that originalism is liberal or conservative. He said he was "the fifth vote" in the flag burning case. I agree with Scalia's view that though flag burning is not a good thing, the Constitution clearly allows it in the First Amendment.
He also rejected the idea that the 'living Constitution' allows for greater freedom. Scalia notes this is a two way street. "Granting of a right to abortion on the part of the woman is the end of the right to life of the fetus," he said, showing that whenever you grant a right to someone, there is somewhat of an equal and opposite reaction on someone else's freedom.
In fact, Scalia notes, liberals should like that he's an originalist. "Scalia...he's handcuffed! He cannot do all the mean and nasty conservative things to society that he wants to do," he noted, in one of the funnier moments during the talk.
The "living Constitution" Scalia puts forth, does not give any guidelines for how the Constitution morphs. In fact, you might as well have no formal Constitution, and move to a system closer to England, where the last decision by the high court is law.
Scalia finished by talking about the "sad" state that the selection of Supreme Court justices is. No longer do people look for the best lawyers, they just look for people who agree with the majority. This results in battles and stalemates over judicial appointments.
The floor was then "opened" for questions. I say opened with quotes because all but two of the six questions were asked by faculty members, one was by a graduate student, and the other younger guy didn't identify himself. I wanted to ask Scalia whether or not he thinks Marbury v. Madison is an originalist ruling or not. I think he probably would say yes, given that he spoke fondly of Marshall.
Anyway, it was kind of fun to see professors asking questions with a certain trepidation that you usually only see among students.
During the questions, Scalia noted that the Commerce Clause was one area where the country certainly had changed from the Framing, and that there was a lot of room in that clause. When asked by Professor Goldstein (my adviser for Political Science) about whether or not the reinstatement of whipping posts would be Constitutional or not, Scalia replied that it would be. She wondered if it didn't violate the 8th Amendment he was alluding to earlier, but he said that it had to be both "cruel and unusual," and that though possibly cruel, whipping was not historically unusual. Scalia then took this time to formally propose that every federal judge, after being appointed to the bench, be issued a rubber stamp with an ink pad, the stamp reading "Stupid But Constitutional." I wholeheartedly agree.
I very much enjoyed Justice Scalia's talk, and I think that whether you agree with him or not, you have to credit his views as being legitimate, as well as recognizing his brilliant legal mind. Personally, I like Scalia, but he sometimes runs a little too Hamiltonian for my tastes, so I tend to agree with Clarence Thomas more, who is a little more states rights friendly.
I sat in the front row with several friends, including the aforementioned Gary. Unfortunately, no pictures were allowed to be taken except by the professionals (I wasn't about to take my chances on establishing press credentials. After all, I don't even consider myself a journalist, and neither should anybody else).
Justice Scalia spoke on the topic of originalism, his view on the Constitution. For a topic as potentially dry as Constitutional theory, Scalia's was a lively and engaging talk, as well as being quite funny. The man can crack a joke.
Scalia began with detailing how originalism is a view that is severly in the minority in recent history. He said that there are only two originalists on the Court right now, Clarence Thomas and himself, and he said he "doesn't know" about the two recent additions to the Court, but he thinks "one might be" an originalist.
To demonstrate how minority originalism has become since the Warren Court, he says he used to get the question "When did you become an originalist?" in the same tone one would be asked "When did you first begin to eat human flesh?"
Scalia mentioned that originalism used to be orthodox, and that judges "used to have to lie about twisting the Constitution. Now you don't...there was a certain honesty in that." He used the so-called 'evolving standard' of the cruel and unusual text in the 8th Amendment.
He detailed several of the arguments in favor of non-originalism, or the "living Constitution" view. He believes originalism to be more flexible, not in what the Constitution says, but in what the Constitution doesn't say. He used the example of the death penalty (paraphrasing here, because I don't know shorthand to be able to get everything in my notes fast enough): The Constitution doesn't say anything about it. Want to outlaw it? Convince your fellow citizens it's a bad idea and pass a law. Think outlawing it was bad? Convince your fellow citizens it was a bad idea and pass a law repealing it.
Originalism, according to Scalia, prevents the Courts from making policy. He referenced how bad an idea of 'nine lawyers sitting around and deciding what's a good law' is. Under originalism, the Court only decides if the law conflicts with another law, and how the two interact. He shunned the label that originalism is liberal or conservative. He said he was "the fifth vote" in the flag burning case. I agree with Scalia's view that though flag burning is not a good thing, the Constitution clearly allows it in the First Amendment.
He also rejected the idea that the 'living Constitution' allows for greater freedom. Scalia notes this is a two way street. "Granting of a right to abortion on the part of the woman is the end of the right to life of the fetus," he said, showing that whenever you grant a right to someone, there is somewhat of an equal and opposite reaction on someone else's freedom.
In fact, Scalia notes, liberals should like that he's an originalist. "Scalia...he's handcuffed! He cannot do all the mean and nasty conservative things to society that he wants to do," he noted, in one of the funnier moments during the talk.
The "living Constitution" Scalia puts forth, does not give any guidelines for how the Constitution morphs. In fact, you might as well have no formal Constitution, and move to a system closer to England, where the last decision by the high court is law.
Scalia finished by talking about the "sad" state that the selection of Supreme Court justices is. No longer do people look for the best lawyers, they just look for people who agree with the majority. This results in battles and stalemates over judicial appointments.
The floor was then "opened" for questions. I say opened with quotes because all but two of the six questions were asked by faculty members, one was by a graduate student, and the other younger guy didn't identify himself. I wanted to ask Scalia whether or not he thinks Marbury v. Madison is an originalist ruling or not. I think he probably would say yes, given that he spoke fondly of Marshall.
Anyway, it was kind of fun to see professors asking questions with a certain trepidation that you usually only see among students.
During the questions, Scalia noted that the Commerce Clause was one area where the country certainly had changed from the Framing, and that there was a lot of room in that clause. When asked by Professor Goldstein (my adviser for Political Science) about whether or not the reinstatement of whipping posts would be Constitutional or not, Scalia replied that it would be. She wondered if it didn't violate the 8th Amendment he was alluding to earlier, but he said that it had to be both "cruel and unusual," and that though possibly cruel, whipping was not historically unusual. Scalia then took this time to formally propose that every federal judge, after being appointed to the bench, be issued a rubber stamp with an ink pad, the stamp reading "Stupid But Constitutional." I wholeheartedly agree.
I very much enjoyed Justice Scalia's talk, and I think that whether you agree with him or not, you have to credit his views as being legitimate, as well as recognizing his brilliant legal mind. Personally, I like Scalia, but he sometimes runs a little too Hamiltonian for my tastes, so I tend to agree with Clarence Thomas more, who is a little more states rights friendly.
Labels: SCOTUS, University of Delaware
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