For the people who view the Constitution as a dynamic, evolving, so-called “living document,” Supreme Court Justice Antonin Scalia has a message for you: You’re wrong.
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“Oh, how I hate the phrase we have—a ‘living document,'” Scalia said to a packed Rackham Auditorium Nov. 16. “We now have a Constitution that means whatever we want it to mean. The Constitution is not a living organism, for Pete’s sake.”
Scalia gave the DeRoy Lecture for the Law School and focused on his philosophy, called originalism—that is, giving the Constitution the meaning it originally had. He also answered questions about a range of topics, including affirmative action, the 2000 presidential election, segregation, same-sex marriage, abortion and the phrase “under God.”
About the idea of originalism, he said, “I believe it’s the only sound way to interpret the Constitution. I don’t have to prove that it’s perfect; I just have to prove that it’s better than anything else,” he said.
Scalia said many people who support the idea of an evolving Constitution assume that it only can give rights to people. “It does not,” he said. “We can take away rights just as we can grant new ones. Don’t think that it’s a one-way street.”
Being an originalist doesn’t always make him popular with fellow conservatives, including his own wife, he said. After he voted with the majority in a 1989 ruling that permitted flag burning, his wife made breakfast the next morning and hummed “You’re a Grand Old Flag.”
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Scalia suggested that people who want changes shouldn’t just call something unconstitutional; they should work toward passing laws on the issues they support or oppose. With regard to abortion, he said, “you should persuade your fellow citizens there ought to be a law”—for or against—and work to get that law passed.
Whether you agree or disagree with Scalia, Law Dean Evan Caminker said in his introduction, “at least you know where he stands. He doesn’t mince words.”
Shortly after Scalia began his speech, a group of protesters walked between the seats of the auditorium. They held signs that said, “Affirmative action yes, Scalia no” and “Gay rights yes, Scalia no.”
Scalia responded to the protesters by pausing his speech and turning to Caminker to say: “Is this an accepted form of freedom of speech here? Can I expect another parade?”
After the speech, Scalia took many questions from audience members, often drawing applause from spectators.
A member of the audience asked about the U-M affirmative action cases that the court heard last year, and specifically Scalia’s suggestion that schools lower their standards so more minorities would qualify. The questioner mentioned that Scalia attended Harvard Law School.
“I didn’t go to an elite law school because I’m an Italian American,” he said, but because he met the academic standards.
In response to a question about the 2000 election, he said, “This is four years and an election ago. Get over it.” Many in the audience booed, while others cheered.
On the topic of segregation, Scalia said he probably would have agreed with Justice John Marshall Harlan’s famous dissent in the Plessy v. Ferguson case. The case affirmed “separate but equal” laws, but Harlan said the Constitution is color-blind.
Scalia said that on certain issues not covered by the Constitution, states can choose to adopt statutes or not. “For same-sex marriage as for abortion, I don’t think the Constitution said anything about it.”
Scalia drew laughter from the audience many times, including when he was asked about references to God appearing in the Pledge of Allegiance and on currency. Scalia recused himself from a case involving the issue after speaking about it during a religious rally last year.
“I got skewered once on this question,” he said to the questioner. “Have you been put up to this?”
The speech was sponsored by the DeRoy Fellowship Program, which was established to bring distinguished lawyers and public figures to the Law School to support its educational mission. The Detroit-based DeRoy Testamentary Foundation funds the program.
