Scalia: Stick to Constitution’s original meaning

By Associated Press Nov 19, 2010, 3:01pm MST

RICHMOND, Va. — U.S. Supreme Court Justice Antonin Scalia had some advice Friday for those who argue the Constitution is a “living document” that must change with the times.

“For flexibility, all you need is a legislature and a ballot box,” the court’s most senior member told a crowd at the University of Richmond on Friday.

Scalia sang a familiar refrain, arguing that democracy doesn’t work unless the courts stick to the original meaning of the words found in the Constitution.

Appointed by President Ronald Reagan in 1986, Scalia is one of the court’s few originalists, who believe in interpreting the words of the Constitution as they were meant when they were written.

“The Constitution says what it says and it doesn’t say anything more,” he said.

If the words can be interpreted beyond that, Scalia said, “you’re allowing five out of nine hotshot lawyers to run the country.”

“Unless the words have meaning and unless judges give them their fair meaning, democracy doesn’t work,” Scalia said during an address entitled “Do Words Matter?”

Scalia’s remarks come several days after Justice Stephen Breyer made the opposite case to students at Vanderbilt University Law School in Nashville. Breyer said modern conditions — like the emergence of Facebook and the Internet — should inform justices when interpreting a constitution written in the 18th century.

After his own speech, Scalia signed copies of his book, “Making Your Case: The Art of Persuading Judges,” and was scheduled to teach a class on the separation of powers at the university’s law school.

Scalia said the meaning of words can change over time — such as the evolution of the word “nimrod” from a great hunter in the Old Testament to an idiot thanks, the justice said, to Bugs Bunny’s use of the word to describe Elmer Fudd.

Words also can be given a meaning that was never intended, Scalia said, using the court’s forced protection of the habitat of endangered species as an example. The Endangered Species Act only prohibited the “taking” of such animals, he said, which later was interpreted to extend to the destruction of the forests where they live.

“I don’t think the Congress would ever have supported an interpretation that extreme,” he said.

Judges also are guilty of taking a vague or general term — such as “cruel and unusual punishment” — and giving it a meaning for which it was not intended — such as a prohibition on the death penalty, Scalia said.

Death was the common punishment for felonies such as stealing a horse when the Eighth Amendment was adopted, so its authors — and by extension the people who elected them — could not have possibly believed capital punishment to be cruel and unusual, Scalia argued.

“It’s why we have Western movies,” Scalia said, because the horse thief was either hung or let go. “It was very efficient,” he added.

The ability to change the meaning of those original words should be left to the people, who elect members of Congress with the power to amend the Constitution, he argued. Instead, the confirmation process for a new justice has turned into a “mini Constitutional Convention” as nominees are tested to see how they would interpret — in effect rewrite, Scalia suggests — the Constitution.

Scalia did not take questions from the audience.

Seated at his table was Virginia House Speaker Bill Howell, a Republican who plans to ask the state legislature this winter to request Virginia join with other states to hold a convention to amend the U.S. Constitution to give states the power to overturn federal laws.

“He’s exactly right,” Howell said. “If society has changed, the legislature can change that, or the framers certainly did provide a way of amending the Constitution.”