Supreme Court justice warns against ignoring Constitution's original intent
The Associated Press
04.14.99
TUSCALOOSA, Ala. — U.S. Supreme Court Justice Antonin Scalia warned yesterday against straying from the authors' original interpretation of the Constitution.
The conservative justice, appointed in 1986 by former President Ronald Reagan, considers himself an originalist — which means he believes the Constitution should be interpreted in the context of what it meant to the document's authors.
During his lecture at the University of Alabama, Scalia spoke against ignoring the Founding Fathers' original intent, such as by ruling that capital punishment is "cruel and unusual punishment." Or adding rights not enumerated in the Constitution, such as the right to an abortion.
"If you want that right, pass a law," Scalia said. "If you don't want that right, don't pass a law. That's flexibility. If you want change, all you need is a legislature and a ballot box."
Scalia said that while many people who treat the Constitution as an ever-changing, evolving document believe its drift will always be to the left, that wasn't guaranteed.
A Constitution that isn't anchored in original intent will drift with the whims of the majority, he says.
"A Bill of Rights that means only what the majority wants it to mean is no Bill of Rights at all," Scalia said.
Being an originalist isn't always easy, the justice says, especially when it conflicts with political philosophy. Scalia recently angered conservatives by siding with a five-justice majority in overturning a law banning flag burning. He said he voted the way he believed the Constitution's authors intended the First Amendment to be interpreted — even though it grated against his own sensibilities.
"I can't stand scruffy, bearded people who go around burning the American flag," he said.
He was in Tuscaloosa to deliver the Albritton Lecture, a series sponsored by the fund named in honor of the Albritton family of Andalusia. He is the second speaker in this series. Justice Anthony Kennedy was the first, and Justice Sandra Day O'Connor will speak in November.
Scalia challenged those who believe the Constitution "morphs from decade to decade."
"It means whatever they want it to mean," he said. "If you don't agree with originalism, you have an obligation to come up with something else."
Scalia said he considered himself and Justice Clarence Thomas the only true originalists on the nation's highest court.
He points out that there are amendments for those who disagree with a portion of the Constitution.
"When it is changed, it should be changed in the manner that was intended," Scalia said.
He says it is too late and would be disruptive to correct many of the decisions made based on the living-Constitution theory. However, he says it is not too late to stop making bad decisions based on that theory.