Supreme Court Justice Antonin Scalia, in a speech before The Catholic University of America, advocates literal interpretation of the Constitution, declaring "[t]he words are the law." On the issue of the right-to-die, which will be argued before the court this session, Scalia says, "the Constitution means what it ought to mean...Absolutely plain that there is no right to die; there were laws against suicide." Here is the text of the October 18, 1996 speech.
"A Theory of Constitution Interpretation"
Remarks at The Catholic University of America Washington, D.C. Oct. 18, 1996
by Justice Antonin Scalia
[What is the object of the Court?] This is a matter of interest to not only judges and
lawyers, but any intelligent American citizen, philosopher or not. What do you think your
judges are doing when they interpret the Constitution? It's sad to tell you after 200 years,
there is not agreement on this rather fundamental question: What is the object of the
enterprise?
I belong to a school, a small but hardy school, called "textualists" or "originalists." That
used to be "constitutional orthodoxy" in the United States. The theory of originalism
treats a constitution like a statute, and gives it the meaning that its words were understood
to bear at the time they were promulgated. You will sometimes hear it described as the
theory of original intent. You will never hear me refer to original intent, because as I say I
am first of all a textualist, and secondly an originalist. If you are a textualist, you don't
care about the intent, and I don't care if the framers of the Constitution had some secret
meaning in mind when they adopted its words. I take the words as they were promulgated
to the people of the United States, and what is the fairly understood meaning of those
words.
I do the same with statutes, by the way, which is why I don't use legislative history. The
words are the law. I think that's what is meant by a government of laws, not of men. We
are bound not by the intent of our legislators, but by the laws which they enacted, which
are set forth in words, of course. As I say, until recently this was constitutional
orthodoxy. Everyone at least said that: That the Constitution was that anchor, that rock,
that unchanging institution that forms the American polity. Immutability was regarded as
its characteristic. What it meant when it was adopted it means today, and its meaning
doesn't change just because we think that meaning is no longer adequate to our times. If
it's inadequate, we can amend it. That's why there's an amendment provision. That was
constitutional orthodoxy. When I say constitutional orthodoxy, I don't mean its just
judges and lawyers. Judges and lawyers are not very important. It's ultimately the
American people. What do they think this document is?
That they thought the way I think is demonstrated by the 19th amendment, adopted in
1920. That is the amendment which guaranteed women the right to vote. As you know,
there was a national campaign of "suffragettes" to get this constitutional amendment
adopted, a very big deal to get a constitutional amendment adopted. Why? Why did they
go through all that trouble? If people then thought the way people think now, there would
have been no need. There was an equal protection clause, right there in the Constitution
in 1920. As an abstract matter, what in the world could be a greater denial of equal
protection in a democracy than denial of the franchise. [sic] And so why didn't these
people just come to the court and say, "This is a denial of equal protection"? Because
they didn't think that way. Equal protection could mean that everybody has to have the
vote. It could mean that. It could mean a lot of things in the abstract. It could meant that
women must be sent into combat, for example. It could meant that have to have unisex
toilets in public buildings. But does it mean those things? Of course it doesn't mean those
things. It could have meant all those things. But it just never did. That was not its
understood meaning. And since that was not its meaning in 1871, it's not its meaning
today. The meaning doesn't change.
There have been a lot of reasons why you could deny the vote, not only on the basis of
sex, but also on the basis of property ownership. On the basis of literacy. It was never
regarded as a denial of equal protection. And since it never was, it isn't. That's how they
thought. Now you know that that wouldn't happen today. You know that that issue today
would be resolved in the Supreme Court. People would come to the court and would say,
"The equal protection clause should mean this, and therefore it does meant that.
Nevermind what it originally meant."
How much things have changed is reflected in our case law, most clearly in our 8th
amendment jurisprudence. The 8th amendment prohibits cruel and unusual punishments.
Some of our cases in recent years say that what constitutes cruel and unusual punishments
depends on the age. What comes with the 8th amendment changes according to, and this
the phrase that our opinions use, "to reflect the evolving standards of decency of a
maturing society." Every day, in every way, we get better and better. Now you know that
Pollyanish attitude is not the attitude that is possessed by people who adopt a bill of
rights. People who adopt a bill of rights know that societies not only evolve, they also rot.
And they are worried that future generations may not have the integrity and the wisdom
that they do, so they say, "Some things we are going to freeze in, and they will not
change." But no, with all this development, away from originalism, has [sic] occurred
within the past forty years. [sic] Today, we say in our opinions, We believe, the court
believes, and worst of all the American people believe that not only the 8th amendment
but the whole Bill of Rights, the whole Constitution, "reflects the evolving standards of
decency of a maturing society." Or, to put it more simply, the Constitution means what it
ought to mean. Not what it did mean, but what it ought to mean. And so, all sorts of
rights that clearly did not exist at the time of the Constitution today. It's plain that the
right to an abortion was not thought to exist in 1791 or at the time that post-Civil War
amendments were adopted; absolutely plain. There were laws against them in all the
states.
Absolutely plain that there is no right to die; there were laws against suicide. And you
can go right down the list.
This is not, I caution you, a liberal versus conservative issue. Conservatives are fully as
prepared to create new rights under this evolutionist theory of the Constitution, as liberals
are. Last term, we created a big brand new one that the liberals like, when we held in
Rohmer that a state could not be constitutional amendment prohibit its subunits from
providing special treatment on the basis of homosexuality. Liberals like that one. But the
same term, in fact within weeks of it, I believe, we also said that there is a federal
constitutional right, which my Constitution doesn't reflect, not to have an excessive jury
verdict. We struck down excessive punitive damages. Now there have been excessive
jury verdicts for over 200 years. Nobody ever thought that it was a federal matter, that it
violated the federal Constitution. Punitive damages are no different in that respect from
excessive compensatory damages. So it's not liberal/conservative.
It's modernist versus the traditional view of the Constitution. It should not be thought,
although it is often argued, that this new way of looking at the Constitution is desirable
because it promotes needed flexibility. That's the argument you sometimes hear. The
argument is usually made in anthropomorphic terms, like the people who talk about the
stock market is resting for a new assault at the 4000 level. They do the same thing with
Constitution. The argument is "The Constitution is meant for a living society. If it could
not grow and evolve with the society, it would become brittle and snap. You have to
provide the flexibility." A very plausible argument. It sounds wonderful until you start
to think, "Now, wait a minute. Do these people, who want to chuck away the old
original, constitution, is it flexibility they're looking for?" What was the situation, before
Roe vs. Wade? If you wanted a right to an abortion, create that right the way a
democratic society creates most rights. Pass a law. If you don't want it, pass a law
against it. Or capital punishment. I have sat with three colleagues on the Supreme Court
who thought that capital punishment is unconstitutional. Even though the Constitution
mentions capital punishment. The clause you're all familiar with: "No person shall be
deprived of life, liberty or property without due process..." What do you think they're
talking about? They're talking about the death penalty. And elsewhere, it says you shall
not be sentenced for a capital crime without a grand jury indictment. What do think
they're talking about? They're talking about the death penalty, clearly approved in the
text of the Constitution. It doesn't matter. For the constitutional evolutionist, everyday is
a new day. And so, the death penalty may be unconstitutional. Now does that produce
flexibility? Under the original disposition, you want to have the death penalty? Enact it.
You don't want it? Repeal it. That's flexibility.
So these people who go around talking about the need for growing and bending -- that's
nonsense. What these people want is to impose a view of things on the whole society
from coast to coast, and it is most quickly and most effectively done through the
Constitution. Now there's several vices to a non-originalist approach to the text of the
Constitution. The first difficulty with it, and the most important really, is the question of
legitimacy. The Constitution of the United States nowhere says that the Supreme Court
shall be the last word on what the Constitution means. Or that the Supreme Court shall
have the authority to disregard statutes enacted by the congress of the United States on
the ground that in its view they do not comport with the Constitution. It doesn't say that
anywhere. We made it up. Now, we made it up very sensibly, because what we said was
"Look, a constitution is a law, it's sort of a super-law." This is what Marbury v. Madison
said. And what the law means is the job of courts. They have to say it all the time.
Courts frequently have to try to reconcile conflicting statutes, for example. In doing so,
they have to interpret them. If they cannot reconcile them, they simply say the more
recent one prevails over the older one. And in the case of a "super- law" such as the
Constitution, when they can't reconcile the law and the "super-law", the constitution
prevails. And, says John Marshall, "That's what courts do. It is assuredly the function of
the courts to say what the law is."
It's lawyer's work. But if that is not what the Constitution is, if it is not a text, like a
statute, which means what it meant when it was passed. If it is rather sort of an empty
bottle that contains the aspirations of the society, just all sorts of wonderful aspirations,
the precise content of which is quite indeterminate. No cruel and unusual punishment
today, it may mean the death penalty is ok, tomorrow it won't. Due process of law,
whatever that means. We're just in love with these abstractions, and the Supreme Court
in the future shall decree for us what these abstractions mean. Now if that's what the
Constitution is, it's a sort of list of aspirations, not a real law, then Marbury v. Madison is
wrong.
I'm not very good at determinating what the aspirations of the American people are. I am
so out of touch with the American people. I don't even try to be in touch. People
mention movie stars and I don't know who they're talking about. I get a blank look on my
face. If you want somebody who's in touch with what are the evolving standards of
decency that reflect a maturing society, ask the congress. And of course that's the way it's
done in the United Kingdom. The parliament says what the English constitution consists
of. So if you really believe in the evolving theory, we made a mistake in Marbury v.
Madison, and the Supreme Court shouldn't stick its nose into this stuff at all. It should be
up to the congress to determine where we evolve. What makes you think a committee of
nine lawyers ought to tell where we're evolving to. I mean, I'm a philosophy minor, but I
didn't train as a philosopher. I'm just a lawyer, just between you and me. That's what I'm
really good at. The second problem with non-originalism is suggested by what I call it.
By the name, "non-originalism."
There is saying in politics that you can't beat somebody with nobody. No matter how bad
the candidate run by the other party is, unless you put somebody up you're going to loss.
It's the same thing for philosophies of constitutional interpretation. If you don't like
originalism, and some originalism pause to debate. Originalism has a lot of problems. It's
not always easy to do. Sometimes it's very hard. Sometimes it's awful hard to tell what
the original meaning was. I'll acknowledge all of that. But the real problem is not
whether it's the best thing in the world, but whether there's anything better. And what you
have to ask the non-originalist law professor or whoever else is, "what do you propose?"
What does a judge consult, if not the original understanding of the text? What binds the
biases of judge? Prevents him from simply implementing his own prejudices? What is the
standard? And the fact is, I have never heard another one that has a snowball's chance in
hell of ever being adopted by more than two people. What are you going to use? The
philosophy of Plato? Natural law? That's handy. That will tell judges what to do. Some
suggest the philosophy of John Raule. Public opinion polls? Is that what you want? What
do you want to use? If you don't take what I suggest, what is the standard? The answer is,
there isn't any.
And so imagine what a court that is confronted with a constitution believed to be an
empty bottle; imagine how a case must be decided. For example, whether there's a right
to die. Now if you come tome as a lawyer, I say, oh, I can tell you where there's a right to
die. I can look up all these cases. It was criminal in all the states. Nobody thought it was
unconstitutional. Clearly understood not to be any federal right to die. But if that doesn't
matter, if every day is a new day, and we're talking about the evolving standards of
decency of a maturing society, how do I decide it? I don't have any books I can run to. So
you can imagine how it must be decided: "Do you think there ought to be a right to die?
How about you? Well, that's fine, there must be a right to die." What else are you going
to use? And finally I will mention the last deficiency of non-originalism. And that is, in
the run[sic], it is the death knell of the constitution[sic]. As I suggested earlier, the whole
purpose of the constitution[sic] is to prevent a future society from doing what it wants to
do. That's the whole purpose. To change, to evolve, you don't need a constitution, all you
need is a legislature and a ballot box. Things will change as fast as you want. You want to
create new rights, destroy old ones? That's all you need. The only reason you need a
constitution is because some things you don't want the majority to be able to change.
That's my most important function as a judge in this system. I have to tell the majority to
take a hike. I tell them, "I don't care what you want, but the bill of rights[sic] says you
cannot do it." Now if there is no fixed absolute, if the constitution evolves to mean what
it ought to mean today. What makes you think the majority is going to leave it to me or to
my colleagues to decide what it ought to mean? They will do that if they think it's
lawyer's work. If that's no[sic] what the game is about, if that's not what our judges do on
the supreme court[sic], if they are supposed to tell us what are the evolving standards of
decency that reflect a maturing society I won't look for that quality in my judges. I will
look for judges, and a majority of the people will look for judges who agree with them as
to what the constitution[sic] means. And so you have the absolutely crazy. We are
conducting a mini plebicite[sic] on the meaning of the constitution[sic] every time we
select a new person for the supreme court[sic]. Isn't that what's happening? Does it make
any sense? but I suggest that is the inevitable result if you abandon originalism and move
to a constitution that means what if ought to mean. The people are going to decide what it
ought to mean, who will leave technical legal questions to lawyers. But if the question is
simply, should it be a denial of equal protection, not was it, but should it be a denial of
equal protection for women not to have the vote, they're not going to let a committee of
nine lawyers decide that question. They're going to pick the committee that agrees with
them. So at the end of this long process, this great evolution from stuffy old originalism
to an evolutionary constitution we arrive at the point where the meaning of the
constitution[sic], the most important part of the constitution[sic], the bill of rights[sic], is
decided upon by the very body that the bill of rights is supposed to protect you as an
individual against. Namely, the majority. That seems to me the inevitable demonstration
that the only sensible way to construe a constitution is the way you construe statutes.
What did its words mean when they were adopted? I think we depart from the traditional
view of the constitution[sic] at our own risk. Unfortunately, we've affected the world with
this novel view of the constitution[sic]. Many European countries envy the United States
supreme court[sic] because of its wonderful power to create rights that ought to exist and
eliminate rights that ought not. I suggest this is a very new enterprise. We've only been
doing it for forty years. We haven't lasted for 200 years doing it. And we haven't gone far
down the road. I think at the end of it, at the end of the road, there is really a serious
weakening of constitutional democracy. Thank you.
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