Transcript of Scalia’s Wilson Center Remarks

Jeffrey King has compiled a transcript of “the Question and Answer period subsequent to Justice Scalia’s speech at the Wilson Center on March 14, 2005.” A couple of especially interesting excerpts:

I̢۪m saying the Eighth Amendment means what was cruel and unusual and unconstitutional in 1791 remains that today. The death penalty wasn̢۪t, and hence it isn̢۪t, 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 don̢۪t 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 don̢۪t need a constitution to do that. And it̢۪s not the function of a constitution to do that.


I’m not talking about applying the Constitution to new phenomenon. That’s not what’s going on. I’m willing to apply the Constitution to new phenomenon. You take it’s original meaning and you say “Well, it covers this, it doesn’t cover that. This thing is somewhere in-between.†You have to figure out where it is. Sure, judges have to do that. I’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 it’s enormously seductive to a judge. The Living Constitution judge is a happy fellow. He comes home at night and his wife says, “Dear, did you have a good day on the bench?†“Oh, yes. We had a constitutional case today. And you know what? The Constitution meant exactly what I thought it ought to mean!†Well of course it does, because that’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

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. Kappiy says:

    Maybe Scalia will lead the charge to get rid of those pesky amendments that have sullied the original intent of the Constitution.

    Heck, we were successful in overturning the 18th amendment to get back to a more “originalist” position. Let’s get rid of the rest of them. They certainly are superfluous and have resulted in the kind of “massive disruption of the…social order” that Scalia decried in his dissent to the Lawrence case.

  2. James Joyner says:

    Well, no. Scalia isn’t arguing that the way things were in 1789 are better than they are now. He merely asserts that the Constitution, as it was written, is what’s binding on judges unless the Constitution has been amended, in which case the amendment means what it means at that point in time.

    The alternative is a Constitution that has no meaning except the desires of a majority of the Supreme Court at any particular instant.

  3. McGehee says:

    Heck, we were successful in overturning the 18th amendment to get back to a more “originalist” position.

    By ratifying the 21st Amendment, in accordance with the written rules in the Constitution for amending it. What’s your point?

  4. Just Me says:

    I don’t know that he is arguing that additional amendments should be removed. Adding amendments through the constitution is a legislative, not a judicial or excecutive proccess.

    Congress passes the amendment, then 2/3’s of the states have to ratify it, in order for it to become part of the constitution, I would assume that you could refer to those additional amendments with an originalists viewpoint though to when they were added.

    For instance, if Congress wanted to write an admenment that defined capital punishment as cruel and unusual, and it passed and was ratified, then it would become part of constitutional law, verses the Supremes deciding that because of revolving standards, it is cruel and unusual based on the 8th amendment.

    That is the difference.

  5. GP says:

    Originalism seems all a bit too simplistic in that it treats the Constitution as a cook book. If the ingredients aren’t in the text, then throw your hands up and call “Uncle”. Scalia doesn’t see the word “abortion”, so it can’t be protected.

    Isn’t it also based on a fantasy? Can we actually get into the heads of the Founding Fathers? We can read books, but it won’t let us get into their really meaning. Further, the Constitution was written within a context (social, political, scientific, etc.), which is far different from the context in which Scalia reads it today. How then is it that anyone reading it today isn’t reading into it the context of modern life in a way that doesn’t automatically violate the strictures of originalism. Freedom meant something very different in 1791 than it does today. But without a time machine, there is really no way to know with the precision required by Scalia’s job to know what the Founding Fathers meant. And why are we protecting 1791’s version of freedom if that is wholly different than what most would agree is freedom today?

    It is not that I am saying it is an inadmirable goal for Constitutional judges to try to stick to the text and not wildly read into it something that clearly is not there. But every Constitutional case has to do this by necessity.

    And why do we care that much about the context in 1791? The text clearly was not intended to prohibit ownership of black slaves. Yet what if blacks were to become the majority and decide they wanted to own white slaves – would Scalia view this as Constitutional?

  6. space says:

    Scalia should just be thankful that his fellow justices don’t spend much time trying to humiliate him by (a) pointing out the flaws in Originalism (e.g. under an Originalist interpretation freedom of expression would be vastly curtailed as the First Amendment was never originally intended to cover much beyond political speech) or (b) pointing out all the times where Scalia deviates from his own stated mode of judging (e.g. his refusal to let Congress abrogate State sovereign immunity under the Commerce Clause by reading into the X and XI Amendments a natural-law right of states that isn’t expressly mentioned).

  7. Joe Olivier says:

    ”The language and history of the Ninth Amendment reveal that the Framers of the Constitution believed that there are additional fundamental rights, protected from governmental infringement, which exist alongside those fundamental rights specifically mentioned in the first eight constitutional amendments” – The “Living Documentists” that Scalia abhors are enfranchised in the 9th amendment. The Federalists were worried that rights that weren’t expressly granted by the Bill of Rights would be endangered, so they insisted on inclusion of the 9th amendment- “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Ironically, whether you read the Constitution as an Originalist or as a Living Documentist, both logically reach the same conclusion- the Constitution was meant to be a flexible, living document.

  8. James Joyner says:

    It’s not all that complicated. It’s not that “abortion” isn’t in the Constitution. Neither is “Internet,” but judges can reasonably treat apply speech, media, and commerce rulings to new media. Abortion existed at the time of the Founding and, until 1973 (damned near 200 years, in other words) was never construed to contain a right thereto.

    And, GP, the 13th Amendment rather clearly prohibits slavery. It took an amendment (and, indeed, a war) to get there since the original text rather clearly protected slavery. (The 3/5 Compromise and all that.)

  9. McGehee says:

    It’s really astonishing how little so many know about the Constitution.

  10. JW says:

    Kappiy and GP:
    “All you need is a legislature and a ballot box.”

    Scalia is saying two things: that ideas not mentioned at all in the Constitution AS WRITTEN AT THIS MOMENT should be handled by legislation AND that matters stated broadly in the Constitution should be particularized at the state and federal levels by the will of the majority as enacted by their legislative representatives.

    The unexpressed third principle has already been mentioned by McGehee–if you don’t like what the Constitution says on a given topic at this moment, amend it in accordance to the legislative process already in place, not by judicial fiat.