Tuesday, April 14, 2009

Justice Scalia on Constitutional Interpretation

Today I attended a public address by the Honorable Antonin Scalia, Associate Justice of the Supreme Court of the United States. Justice Scalia spoke in Albuquerque New Mexico, at an event co-sponsored by the Federalist Society and the University of New Mexico School of Law. Justice Scalia spoke about Constitutional Interpretation and made a strong and compelling argument for the originalism interpretation theory which suggests that the Constitution of the United States does not change, and that it can only be changed through the amendment process. Justice Scalia was nominated as an Associate Justice of the Supreme Court by President Reagan and he assumed office on September 26, 1986. Justice Scalia is a self described conservative and serves as an example to conservatives today in regard to how the Constitution should be interpreted when applied to court cases and controversial issues such as gay marriage, abortion, gun rights, etc. The Justice argues that the idea of the Constitution as a 'living' document began with the Warren Court in the 1950's. The idea of the Constitution as a living document suggests that the Constitution must be flexible and change with the times. Justice Scalia's concern with the living document theory is that the United States is in danger of having a Supreme Court that will reflect the will of the people, which he suggests is the exact opposite of what the Supreme Court is supposed to do. The Supreme Court was designed to protect the individual from the majority and to ensure that legislatures do not impose the will of the people if it is contrary to the Constitution. The originalism theory, also known as the original intent theory looks for the understanding of the Amendment, or law, when it was adopted, as opposed to interpreting and changing the Constitution to make it mean what you want it to mean. Justice Scalia uses abortion and gay marriage as the main examples for his argument. He contends that the original drafters of the Bill of Rights never would have thought that they intended the right to have an abortion to be included within the right to privacy. He also makes the assertion that the drafters of the 14th Amendment never would have imagined that the Amendment would be used a means to make gay marriage a constitutionally guaranteed right.

Justice Scalia represents the conservative ideology of the Supreme Court and is a big proponent of judicial restraint, State sovereignty, and the original intent theory. Conservatives today should study the theories that Justice Scalia applies to his interpretations of the Constitution and strive to exemplify the same principles.


  1. Justice Ginsburg should heed this advice. Her recent comments with regards to consulting judges abroad are ludicrous.

  2. From your lips to God's ears, as they say.

    Not much point in making your own laws if you're going to consult another nation's laws to make decisions. Wonder what she'd say about the "legal rape in marriage" laws from Afghanistan? I can guess. So she picks and chooses which laws she wants to use as guiding points - sounds like she's the law unto herself, doesn't it!

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  4. I believe our constitution works because it does allow for amending. Of course, the founding fathers could not have foreseen the exact changes - and reasons for those changes. Gay marriage, weapon rights, abortion, and all the "hot button" issues...I know the original reason for guns as for "militia" has hit this same issue. Did they foresee automatic weapons? of course not.

    The Supreme Court interprets the constitution and, although it needs conservative and liberals both, ultimately they aren't party related. I think the Court has alot of power, and takes that power seriously.

  5. Quotes from NY Times article on Ginsberg:

    Justice Ginsburg said the controversy was based on the misunderstanding that citing a foreign precedent means the court considers itself bound by foreign law as opposed to merely being influenced by such power as its reasoning holds.

    “Why shouldn’t we look to the wisdom of a judge from abroad with at least as much ease as we would read a law review article written by a professor?” she asked.
    I believe saying "pick and choose" which laws you want to follow deeply degrades the Supreme Court. Using foreign precedents is different then being bound by foreign laws. I believe seeing how other countries dealt with issues, ones we are debating, is a forward step in the growing global connection.

  6. >>I believe our constitution works because it does allow for amending.>>

    Agreed. But that amendment has a prescribed course, and that is through legislation, _not_ through interpretation by the Justices.

    >>I believe seeing how other countries dealt with issues, ones we are debating, is a forward step in the growing global connection.>>

    So you're willing to compromise the specific freedoms that differentiate this nation from others in order to achieve...what???
    Why is it a forward step to consider as solutions the conclusions of legal systems that have completely different basic assumptions than this nation has? Do you propose to change our basic assumptions (which for this purpose are the Constitution and its amendments)?

    Just as an example, are you aware that Canada and Great Britain do not have a guaranteed freedom of speech?

  7. Here's another example.


    (Link is to GunRightsExaminer. It was very long, and this blog doesn't seem to permit live links)

  8. Heh. This short article sort of combines both the "consider foreign laws" and gun rights issues...


  9. THe interpretationof the law is going to change with time, because people in generations change. Of course the people that created didn't expect to gay marriage, or abortion, but it does not mean that poeple didn't do it. People I think have become more aware that they are entitled to have a say so and rights that represent their needs, and not have the gov. dictate their lives.

  10. Unfortunately, any person can make an argument that a certain action is a right for U.S citizens and use the ninth amendment in the constitution to justify their claim. The ninth amendment guarantees more rights for U.S citizens than are stated in the constitution. However, as I stated before that this amendment is very vague. I can say that getting $25 an hour is a right for U.S. citizens and no one will be able to state that I am wrong because of the ninth amendment. The U.S Supreme Court needs to define the aspects that make a right. Until the Supreme Court defines the conditions that make a right, we are going to continue to go around in circles with these issues.

    I would also like to know what you think about the drinking age law. It seems to me that they are breaking the 14th amendment by not allowing 18 year olds citizens to drink, but are allowing 21 year olds citizens to drink. The constitution does not state that 21 year old citizens get more privileges than the 18 year old citizens. It seems to me also that federal government is pushing state government to do want they want, since any state that does not follow this law, they lose their highway funding. This aggravates me to no end.

  11. Victor you make some strong arguments here. In regard to the age restriction on alcohol, you pretty much got it right, the states have the final say in determining the age that someone can buy and consume alcohol because the state has police power and Congress does not. The government uses the carrot on a stick (highway) funding to force the states into choosing 21. Another argument for the 21 restriction and the answer to the 14th Amendment argument is the compelling interest theory which asks the question: does the state or government have a compelling reason for passing a law and is that law implemented in the least restrictive means? In this case I would argue that the state has a compelling reason for discriminating between 18 year olds and 21 year olds. Somewhere down the law it was determined that 21 year old individuals have a higher degree of responsibility than 18 year olds. A previous case was struck down by the Supreme Court which allowed females to buy beer at 18 and males at 21. Check it out sometime, Craig v. Boren (1976). Another case in 1987 upheld the governments right to withhold highway funding if states did not apply the age restriction in South Dakota v. Dole.

    This is a long reply but it is an interesting subject.

  12. Solid effort, Nathan and a very nice blog. Keep after it! Ralph Alter