«THE TANNER LECTURES ON HUMAN VALUES Delivered at Princeton University March 8 and 9, 1995 ANTONIN SCALIA is Associate Justice of the United States ...»
I do not suggest, mind you, that originalists always agree upon their answer. There is plenty of room for disagreement as to what original meaning was, and even more as to how that original meaning applies to the situation before the court. But the originalist at least knows what he is looking for: the original meaning of the text. Often, indeed I dare say usually, that is easy to discern and simple to apply. Sometimes (though not very often) there will be disagreement regarding the original meaning; and sometimes there will be disagreement as to how that original meaning applies to new and unforeseen phenomena. How, for example, does the First Amendment guarantee of “the freedom of speech” apply to new technologies that did not exist when the guarantee was created to sound trucks, or to government-licensed over-the-air television?
In such new fields the Court must follow the trajectory of the First Common-Law Courts in a Civil-Law System 119 [SCALIA] Amendment, so to speak, to determine what it requires-and assuredly that enterprise is not entirely cut-and-dried, but requires the exercise of judgment.
But the difficulties and uncertainties of determining original meaning and applying it to modern circumstances are negligible compared with the difficulties and uncertainties of the philosophy which says that the Constitution changes; that the very act which it once prohibited it now permits, and which it once permitted it now forbids; and that the key to that change is unknown and unknowable. The originalist, if he does not have all the answers, has many of them. The Confrontation Clause, for example, requires confrontation. For the evolutionist, however, every question is an open question, every day a new day. No fewer than three of the Justices with whom I have served have maintained that the death penalty is unconstitutional, even though its use is explicitly contemplated in the Constitution. The Due Process Clause of the Fifth and Fourteenth Amendments says that no person shall be deprived of life without due process of law; and the Grand Jury Clause of the Fifth Amendment says that no person shall be held to answer for a capital crime without grand jury indictment. No matter. Under The Living Constitution the death penalty may have become unconstitutional. And it is up to each Justice to decide for himself (under no standard I can discern) when that occurs.
In the last analysis, however, it probably does not matter what principle, among the innumerable possibilities, the evolutionist proposes to determine in what direction The Living Constitution will grow. For unless the evolutionary dogma is kept a closely held secret among us judges and law professors, it will lead to the result that the Constitution evolves the way the majority wishes. The people will be willing to leave interpretation of the Constitution to a committee of nine lawyers so long as the people believe that it is (like the interpretation of a statute) lawyers’ work -requiring a close examination of text, history of the text, traditional understanding of the text, judicial precedent, etc. But if the people come The Tanner Lectures on Human Values to believe that the Constitution is not a text like other texs; if it means, not what it says or what it was understood to mean, but what it should mean, in light of the “evolving standards of decency that mark the progress of a maturing society,” well then, they will look for qualifications other than impartiality, judgment, and lawyerly acumen in those whom they select to interpret it. More specifically, they will look for people who agree with them as to what those evolving standards have evolved to; who agree with them as to what the Constitution ought to be.
It seems to me that that is where we are heading, or perhaps even where we have arrived. Seventy-five years ago, we believed firmly enough in a rock-solid, unchanging Constitution that we felt it necessary to adopt the Nineteenth Amendment to give women the vote. The battle was not fought in the courts, and few thought that it could be, despite the constitutional guarantee of Equal Protection of the Laws; that provision did not, when it was adopted, and hence did not in 1920, guarantee equal access to the ballot, but permitted distinctions on the basis not only of age, but of property and of sex. W h o can doubt that, if the issue had been deferred until today, the Constitution would be (formally) unamended, and the courts would be the chosen instrumentality of change? The American people have been converted to belief in The Living Constitution, a “morphing” document that means, from age to age, what it ought to mean. And with that conversion has inevitably come the new phenomenon of selecting and confirming federal judges, at all levels, on the basis of their views regarding a whole series of proposals for constitutional evolution. If the courts are free to write the Constitution anew, they will, by God, write it the way the majority wants; the appointment and confirmation process will see to that. This, of course, is the end of the Bill of Rights, whose meaning will be committed to the very body it was meant to protect against: the majority. By trying to make the Constitution do everything that needs doing from age to age, we shall have caused it to do nothing at all.
Common-Law Courts in a Civil-Law System [SCALIA] 121 As I said at the outset of these lectures, the interpretation and application of democratically adopted texts comprises virtually all the work of federal judges, and the vast majority of the work of state judges, in New Jersey and elsewhere. I have tried to explain why, in my view, we common lawyers come to the bench ill prepared for that task -indeed, even ill disposed towards that task.
I have discussed a few principles of statutory interpretation that seem to me the most basic or the most currently in need of emphasis. That part was principally of interest to the lawyers among you. And finally, I have discussed the major issue of textual interpretation posed by that peculiar type of text known as a constitution. These last remarks were not distinctively lawyers’ or judges’ business, but the business of every intelligent citizen; for as I have explained, if the people misunderstand the nature of the Constitution, and the role of the courts in its enforcement, the enterprise cannot succeed.