Justice Scalia on Restoring the Constitution: "I don't know that I'm optimistic."
Scalia on Restoring Constitution: 'I Don't Know That I'm Optimistic'
(CNSNews.com) – Supreme Court Justice Antonin Scalia said
recently that--"especially after last term"--he does not know if he is
confident the Constitution can be restored to its original meaning.
He likened his own efforts to do so to the character "Frodo" in the Lord of the Rings, who fights the good fight not certain he will win.
While discussing his new book Reading Law at Stanford University on Oct. 19, the Hoover Institution’s Peter Robinson quoted to Scalia a passage from Scalia's book, Reading Law:
"Originalism does not always provide an easy answer, or even a clear
one. Originalism is not perfect. But it is more certain than any other
criterion, and it is not too late to restore a strong sense of judicial
fidelity to texts."
“So here’s the question,” said Robinson. “This book, for that matter
your entire career, represents a sustained, determined effort at
restoration. Are you optimistic? How’s the project coming?”
Scalia said: “That’s an unfair question, especially after last term. I
dissented in the last 6 cases announced last term. So I don’t know. I
don’t know that I’m optimistic. The fight is worth fighting, win or
lose. You know, [like] Frodo in the Lord of the Rings.
“Look," Scalia contiued, "the problem is that the other approach
is enormously seductive. Even for the average citizen it’s seductive,
to think that the Constitution means what it ought to mean. ‘It’s a
living Constitution. Anything I care passionately about, it’s right
there in the Constitution.’”
“You know, people used to say when they don’t like something that’s
going on, they say: 'There ought to be a law,'” said Scalia. “There
used to be a comic strip that’d--there ought to be a law about people
playing boom boxes in the park and stuff like that.”
“People don’t say that anymore,” said Scalia. “They say, ‘It’s
unconstitutional,’ if they really feel passionately about it. And it is
even more seductive to judges. It’s a wonderful thing to have a
constitutional case and you’re always happy with the result because it
means exactly what you think it ought to mean.”
The “originalist” perspective
says the words of the Constitution should be given the same meaning
they originally had in the minds of the Framers. A competing view,
often advocated by contemporary liberals, is that the Constitutio is a
“living document” and that judge can change its meaning to fit modern
mores and sentiments.
The Constitution itself expressly provides an amendment process for people who want to change it.
Scalia was promoting his new book, Reading Law: The Interpretation of Legal Texts, co-authored by Bryan Garner.
Justice Scalia and the other three "originalists" on the Court have the
intent of the founders on their side. James Madison, "the father of
the Constitution," wrote in 1825, "I entirely concur in the propriety of
resorting to the sense in which the Constitution was accepted and
ratified by the nation. In that sense alone it is the legitimate Constitution."
In 1803, Thomas Jefferson wrote, "Our peculiar security is in possession of a written Constitution. Let us not make it a blank paper by construction." (Emphasis added)
that is exactly what has happened over the last century, as the Supreme
Court, time and time again, has failed to "resort to the sense in which
the Constitution was accepted and ratified," and has instead "made a
blank paper of it by construction." Thus we are left today with an
all-powerful federal government, the very creation of the states
themselves who had intended that it have only limited powers has, with
the concurrence of the Supreme Court, usurped powers in virtually every
area of governance that the founders had left to the states, and
rendered both the Ninth and Tenth Amendments meaningless.
Scalia's lament is understandable to those who recognize the truth of
both Madison's and Jefferson's writings, that a Constitution that means
what ever the current members of the Court say it means, without
reference to the meaning at the time it was ratified by the states, is
actually meaningless, "a blank paper" in Jefferson's words.
only real hope we have of restoring the Constitution is an effort by
the people themselves, through their state governments, to force the
federal government to relinquish the powers it has usurped.
Constitutional Law Professor Randy Barnett of Georgetown University has
put forth such a proposal - published in both the Wall Street Journal
and Forbes Magazine. Prof. Barnett's "Bill of Federalism"
consists of 10 proposed amendments that would have the effect of putting
the original meaning back into the Constitution, and reversing the
broadening of powers of the Federal Government. If adopted, the Bill of
Federalism would force the Federal Government to close every agency and
department that is unconstitutional under the terms of the original
Constitution within five years.
is a link to the Forbes Magazine article - note that there is a link at
the bottom of the article to the actual Bill of Federalism, along with a
resolution for states to adopt it.
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