Transcript of Scalia’s Wilson Center Remarks
Jeffrey King has compiled a transcript of “the Question and Answer period subsequent to Justice ScaliaÃ¢€™s speech at the Wilson Center on March 14, 2005.” A couple of especially interesting excerpts:
IÃ¢€™m saying the Eighth Amendment means what was cruel and unusual and unconstitutional in 1791 remains that today. The death penalty wasnÃ¢€™t, and hence it isnÃ¢€™t, despite the fact that I sat with three colleagues that thought it had become unconstitutional. Executing someone under eighteen was not unconstitutional in 1791, so it is not unconstitutional today. Now, it may be very stupid. It may be a very bad idea, just as notching ears, which was a punishment in 1791, is a very bad idea. But the people can change, the people can eliminate those stupidities if and when they want. To evolve, you donÃ¢€™t need a constitution. All you need is a legislature a ballot box. Things will evolve as much as you want. They can create a right to abortion. They can abolish the death penalty. They can legitimize homosexual sodomy. All of these things, all of these changes can come about democratically. You donÃ¢€™t need a constitution to do that. And itÃ¢€™s not the function of a constitution to do that.
IÃ¢€™m not talking about applying the Constitution to new phenomenon. ThatÃ¢€™s not whatÃ¢€™s going on. IÃ¢€™m willing to apply the Constitution to new phenomenon. You take itÃ¢€™s original meaning and you say Ã¢€œWell, it covers this, it doesnÃ¢€™t cover that. This thing is somewhere in-between.Ã¢€ You have to figure out where it is. Sure, judges have to do that. IÃ¢€™m not saying originalism gives you an answer to every question. But it gives you an answer to an awful lot of questions, including the most controversial ones: abortion, suicide, homosexual sodomy. Those answers are clear. Whereas, the non-originalists has no answers. Literally, every day is a new day. Every day is a new day. You know, is the death penalty unconstitutional yet, with evolving standards of decency?
Quite right. He explains, though, why we are unlikely to see originalism re-emerge as the modal means of judging:
I mean itÃ¢€™s enormously seductive to a judge. The Living Constitution judge is a happy fellow. He comes home at night and his wife says, Ã¢€œDear, did you have a good day on the bench?Ã¢€ Ã¢€œOh, yes. We had a constitutional case today. And you know what? The Constitution meant exactly what I thought it ought to mean!Ã¢€ Well of course it does, because thatÃ¢€™s your only criterion.
Yep. By contrast, the originalist judge will likely have to rule against his own better instincts as to what the law should be. How much fun is that?
via Scott Johnson