One Outta Nine

Antonin Scalia takes the podium wearing a grey suit, a funny look for a man expected to be seen in black robes. The suit gives him an unfamiliar appearance of normality, as though he is a journalist, or a sports coach, or perhaps a visiting professor. He smiles on the stage set up for him in Tufts' gymnasium complex, and begins by complementing Tufts on its campus; he had never been here before, he admits. His pleasant tone and comfortable disposition begin to dissolve the tension in the room. Yes, this man is a conservative Supreme Court justice coming to speak to a largely liberal, activist student population. But he isn't here to fight; he's here to lecture. And his lecture comes in stories and jokes, asides and imitations, the type of performance one expects of a grandfather in a living room. And, like a grandfather, this man has some orthodox ideas, but, even if you didn't agree with him, you can't help but like him.

Photo shamelessly stolen from Josh Reynolds

Justice Scalia's speech is on interpreting the Constitution, and his thesis goes something like this: I am an Originalist, which means I care about what the people who made the law meant when they made it. And if they didn't mean it, I won't pretend they did.

The current longest-serving justice on the court, he has seen the Originalists fade away over time, but in his day, Originalism was all there was. "When did you become an Originalist?" people ask him, as though asking, "When did you start eating human flesh?" The audience laughs at his lightheartedness. He didn't become an Originalist, he argues, it was orthodoxy; it was there first.

Scalia derides the notion that societies "mature and never rot", claiming that new interpretations and new intentions can be a dangerous, slippery slope when applied to the Constitution. We have a Bill of Rights, he says, to protect our rights as Congress makes new laws, because we know we can mess up the new laws. He mocks those who would reinterpret the Constitution, or any law: "It used to mean that, it just doesn't mean that anymore. Why? Because we don't think it ought to." As his argument goes, if we want to change policy, Congress should have to pass new laws; it isn't up to the Court to deem "unconstitutional" anything society doesn't want anymore. From his point of view, nowadays, the Court legislates.

He draws on the eighth amendment as an example, a topic that intrigues me: cruel and unusual punishment. For Scalia, there are no "evolving standards" in the definition of cruel and unusual. The words mean what the founders wanted them to mean, and in those days, they were fine with hanging people. So nothing less can be cruel or unusual. Certainly not the electric chair, or lethal injection, in his view more humane.

Originalism: Because the founding fathers knew what they were doing

Take the nineteenth amendment; women's suffrage. No one came to the Court asking for that right; the Constitution was amended. And that, he argues, is the way it should be. But as long as a law stays on the books, it isn't up to the Court to change it. "It is entirely possible," he says, "for a law to be really stupid, but constitutional." Yet these days, "if there's anything you really hate, it has to be unconstitutional!"

The justice gives a brief account of the Constitution as a living organism, using flowery language that drips with disdain. He smiles broadly. "The Constitution is not a living organism. It is a legal document." He rejects the "so-called living Constitution," arguing that his Constitution is the "living" one, as it keeps alive the original intentions of those who drafted and ratified it. Turning back to the death penalty, referring to legislating in Congress rather than in the Court, he argues: "Under my system, you can go back and forth. If you find out there are too many murders, you can reinstate it." But once it's "unconstitutional", there's no easy going back.

He pokes fun at the court, and lawyers in general, in generous proportion, often referring to himself and his colleges as "nine lawyers," men and women who shouldn't have the power or responsibility to determine what society's new needs may be. "What do I know about the evolving standards of decency? I'm afraid to ask." The audience laughs. "You know who knows? Congress." Pass a new law; don't wait for the Court to find new meaning in the old ones.

Most importantly, he says, Originalism is a way of "controlling judges." If you force judges to rule based on the laws, they can't take too many liberties; if you let them go beyond that original intent, what limits their power?

According to Scalia, when the justices can legislate, it becomes a game of political appointments.

He argues the case for Originalism well, despite a few slips (like calling gay rights "homosexual sodomy" in passing). The whole speech, and the lengthy question-and-answer period to follow, is filled with jokes and self-deprecating humor. One audience member begins a question with, "I'm with the Boston Herald, fair warning," to which the justice replies, "Can't scare me. I have life tenure."

A question on Obamacare is met curtly with "Not my business," and a concern about the Transportation Security Administration (TSA)'s search practices is countered with, "I think the reasonable person would rather be searched than blown up. You ask them which they prefer and they'll say 'search me'. [laughter] Ha, ha. I like that." Does he try to err on the side of state's rights or people's rights? "I try not to err at all."

The justice is a supporter of state's rights, jokingly wondering what the use of a Federal Republic would be. Different people should be allowed, he reasons, to create different rules in their different states. And when it comes to protecting minorities, he finds that "we are a tolerant democracy that makes exceptions for deserving minorities," and that if a minority can't find any means (other than activist courts) of getting things changed to their way, they probably don't have a very legitimate claim to change things.

But the Justice doesn't see his position as necessarily the popular one, nor does he see his role as particularly powerful in shaping the future of the country. "I'm just one outta nine," he complains, "You ever been in a committee of nine people?"

* * * * *

Throughout the lecture, I couldn't help but rack my brain for responses to Scalia's arguments. His defense of Originalism was sound, but my devotion to ending the death penalty and my instinctive rejection of traditional values made me want to fight back. Although I didn't quite muster the courage (or formulate the sentences in time) to participate in the Q&A, what follows are my musings on the Originalist argument:

So the drafters of the Constitution were okay with hanging people. Fair enough. Clearly, they didn't write "cruel and unusual" with the intention of abolishing their death penalty in their time. But that isn't the end of the story.

Our founders knew nothing of electric chairs or lethal injections, and while today's thinkers may conclude that these means of execution are not more cruel than hangings, we do have to ask ourselves what this implies. We create new technologies, new ways for society to function, that extend beyond anything that could have been anticipated in the 1700s. They didn't know that free speech would need to protect websites, or that "arms" available to citizens would one day include rocket launchers. It is not a simple matter of applying what they intended at the time to modern technology; we also must consider whether or not their intentions would have changed in the face of a different society with different capabilities and different social norms. Is it fair to hold modern society to standards codified so long ago?

Who knows what the original intent was?

Scalia would argue that change could come, but it ought to come from the legislature. Sick of the death penalty? Pass a law. Need new protections from wire-tapping? Pass a law. Invented the internet? Pass a bunch of laws. But wait! Scalia also argues that the Bill of Rights exists to limit our capabilities in passing laws, to limit the damage we may do. The protection against searches and seizures afforded by the fourth amendment should mean that we the people are protected from laws that would otherwise infringe on our security in person and belongings. So why do we now need the same government who will seek protection from to extend our constitutional rights through new legislation? Why trust Congress to "update" our protections? Isn't the real intention of the Bill of Rights to protect us from what Congress may wish to do? Isn't it up the the courts to update those protections, to apply them to our society in our time, despite the laws that the legislature may attempt to sneak through?

And it is true that Originalism provides a convenient restraint on the judges, limiting their room for finageling and twisting the rules of our nation. But why should original intent be the standard by which we keep the judiciary objective? Simply because it can be? Why should we put so much stock in the intentions of Jefferson and Madison, who, as was aptly pointed out by an audience member today, are white Christian men living centuries ago. Whatever their good intentions, they created a system built to favor their values, made intentionally difficult to amend - especially if the people we're asking to amend it were elected under the old laws. Scalia sees this as a necessary component of our democracy, but why hold the system is such high reverence? Who cares what "cruel and unusual" meant in the eighteenth century; the spirit of the law is to protect the people from an overreaching government, and in today's world, execution is no standard.

The founders didn't intend a lot of things. Are we ready to reevaluate by their standards?

The argument that we should live in a checkerboard of state governments may have sounded good to early revolutionaries, but the modern United States of America is a unified fifty-state polity. Today, we can cross from Boston to Philadelphia in an afternoon, not a fornight, and it seems unreasonable that stepping over those barely-noticeable boundaries should transport an individual from a world in which he is safe from execution to one in which the Commonwealth of Pennsylvania can sentence him to death. Americans do not see themselves first as Virginians or New Jerseyans, as they once did. They are citizens of one country, across which the highest court of the land can and should have the power to unify the laws, at least the Constitutional rights.

At least, that's where I am with this right now. As I prepare to take the LSAT this weekend, I can't help but wonder if a few years of law school will completely change my mind. Maybe, one day, I'll be an old man fighting for traditional values from a bench. Or maybe I'll still believe in the courts as a source of change, the kind of change that gave us "separate is not equal" and "Miranda rights". Heck, the Court's own function was interpreted - by the court - in Marbury v. Madison. No one legislated that. Even the Constitution doesn't intend it. The Court went ahead and filled that new role.

Or we can play it safe in the judiciary and wait for new laws before we acknowledge the changing values of our society. But if we're waiting on Congress to embrace our future, we're in trouble. Because the last thing Congress did for our government was shut it down.