A recent example of this unwitting confession is found in the much-hyped interview with Supreme Court Justice Antonin Scalia (shown in photo) published in New York magazine.
In a one-on-one question and answer session that took place in the Supreme Court’s East Conference Room, New York’s Jennifer Senior covered a broad landscape of legal, personal, religious, and moral issues with the iconic judge.
Early in the conversation, Senior asked Scalia when he began to embrace constitutional originalism. Originalism is a theory of constitutional interpretation calling for the viewing of that document through the lens ground by the Founders rather than through contemporary optics. Scalia’s answer reveals much of what informs his jurisprudence.
I don’t know when I came to that view. I’ve always had it, as far as I know. Words have meaning. And their meaning doesn’t change. I mean, the notion that the Constitution should simply, by decree of the Court, mean something that it didn’t mean when the people voted for it — frankly, you should ask the other side the question! How did they ever get there?
Scalia’s berating of the activist bench echoes a similar point made by Thomas Jefferson. In a letter to Thomas Ritchie in 1820, Jefferson called the federal judiciary “a subtle corps of sappers and miners constantly working underground to undermine the foundations of our confederated republic.”
The self-professed “contrarian” says it’s an “embarrassment” that so many of his colleagues on the Supreme Court fail to understand the limitations on their power to interpret the Constitution.
In following up on his opinion of the proper purpose of the Supreme Court’s constitutional interpretations, Scalia slides into a discussion of federalism, the relationship between states and the federal government.
Describing his conversion from “fainthearted” to “stouthearted” originalist, Justice Scalia says that his earlier softness came about when he was asked whether it would be constitutional for a state to enact a flogging statute. Whereas once he believed such a statute would be unconstitutional, he now repudiates that position, explaining, “If a state enacted a law permitting flogging, it is immensely stupid, but it is not unconstitutional. A lot of stuff that’s stupid is not unconstitutional.”
Click here to read the entire article.