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Justice Scalia’s Two Most Essential Speeches

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February 18, 2016

During his long and illustrious career, the late Justice Antonin Scalia wrote hundreds of thousands of words and delivered hundreds of hours worth of speeches. While there are dozens that could be considered essential, there are two speeches in particular that I believe every American citizen should be familiar with.

The first is “Judicial Adherence to The Text of Our Basic Law: A Theory of Constitutional Interpretation,” a speech given at the Catholic University of America on October 18, 1996. The second is “Constitutional Interpretation the Old Fashioned Way,” which was delivered at the Woodrow Wilson International Center for Scholars in Washington, D.C., on March 14, 2005.

There is considerable overlap between the two speeches since the latter seems to be a revision of the former. But taken together they present not only Justice Scalia’s views on judicial interpretation, but also a prescient analysis of the failures of the modern judicial system and a prophetic warning about the future of the U.S. Constitution.

Although I would highly recommend reading both speeches in their entirety, the following is a summation of the major themes and a selection of the key quotes. Excerpts are marked with “C” when taken from the speech and Catholic University and “W” when taken from the Woodrow Wilson International Center address:

What “originalism” is—and is not  — Originalism, explains Scalia, is a “manner of interpreting the Constitution is to begin with the text, and to give that text the meaning that it bore when it was adopted by the people.” He clarifies that this is not synonymous with “strict constructionism”: “I do not think the Constitution, or any text should be interpreted either strictly or sloppily; it should be interpreted reasonably.”(W)

Scalia also rejected the notion of “original intent.” As he explained,

You will sometimes hear [originalism] described as the theory of original intent. You will never hear me refer to original intent, because 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 U.S. 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, laws which are set forth in words, of course. (C)

Originalism was once judicial orthodoxy — While originalism is now a minority view among judges, it was, until about 50 years ago, considered the orthodox method of judicial interpretation. Even the American people had an originalist perpective of the Constitution.

As an example, Scalia points to the 19th Amendment, which is the amendment that gave women the vote.  

It was adopted by the American people in 1920. Why did we adopt a constitutional amendment for that purpose? The Equal Protection Clause existed in 1920; it was adopted right after the Civil War. And you know that if the issue of the franchise for women came up today, we would not have to have a constitutional amendment. Someone would come to the Supreme Court and say, “Your Honors, in a democracy, what could be a greater denial of equal protection than denial of the franchise?” And the Court would say, “Yes! Even though it never meant it before, the Equal Protection Clause means that women have to have the vote.”

But that’s not how the American people thought in 1920. In 1920, they looked at the Equal Protection Clause and said, “What does it mean?” Well, it clearly doesn’t mean that you can’t discriminate in the franchise — not only on the basis of sex, but on the basis of property ownership, on the basis of literacy. None of that is unconstitutional. And therefore, since it wasn’t unconstitutional, and we wanted it to be, we did things the good old-fashioned way and adopted an amendment. (W)  

“Immutability was regarded as its characteristic,” he adds, “What the Constitution meant when it was adopted is what it means today, and its mean- ing doesn't change just because we think that meaning is no longer adequate to our times.” (C)

If we find the Constitution's meaning to be inadequate, he says, we as Americans can simply amend the document.

Originalism has been replaced with the “Living Constitution” — When originalism was the accepted theory of interpretation, activist judges had to resort to lying about the meaning of the Constitution to get the outcome they wanted, says Scalia. But now that the Constitution is considered to be a document that is living and evolving, the courts don’t even have to resort to deception — they can simply interpret the meaning to be anything they want. The result:

All sorts of rights that clearly did not exist at the time of the adoption of the Constitution and the Bill of Rights exist today. It's plain absolutely plain, that the right to an abortion was not thought to exist in 1791 or at the time that the post-Civil War amendments were adopted, since there were laws against abortions in all the states. It's absolutely plain that there was no right to die, since there were laws against suicide. And you can go right down the list. (C)

How “Substantive Due Process” led to federal protection of same-sex marriage and abortion on demand — Substantive due process, which Scalia calls a “contradiction in terms,” is a principle which allows courts to protect certain rights deemed fundamental from government interference under the authority of the due process clauses of the Fifth and Fourteenth Amendments to the Constitution. 

What substantive due process is is quite simple — the Constitution has a Due Process Clause, which says that no person shall be deprived of life, liberty or property without due process of law. Now, what does this guarantee? Does it guarantee life, liberty or property? No, indeed! All three can be taken away. You can be fined, you can be incarcerated, you can even be executed, but not without due process of law. It’s a procedural guarantee. But the Court said, and this goes way back, in the 1920s at least, in fact the first case to do it was Dred Scott. But it became more popular in the 1920s. The Court said there are some liberties that are so important, that no process will suffice to take them away. Hence, substantive due process.  

Within the last 20 years, we have found to be covered by due process the right to abortion, which was so little rooted in the traditions of the American people that it was criminal for 200 years; the right to homosexual sodomy, which was so little rooted in the traditions of the American people that it was criminal for 200 years. So it is literally true, and I don’t think this is an exaggeration, that the Court has essentially liberated itself from the text of the Constitution, from the text and even from the traditions of the American people. It is up to the Court to say what is covered by substantive due process. (W)

Both liberals and conservatives embrace the Living Constitution — As Scalia notes, “Conservatives are fully as prepared as Liberals to create new rights under this evolutionist theory of the Constitution.” (C) The dividing line is not between liberals and conservatives but between those who think the meaning of the text is fixed and those who believe it continuously evolves to meet the needs of society.

A crash course in Marbury v. Madison — One of the most helpful sections in these speeches is Scalia’s explanation of Marbury v. Madison, the Supreme Court case that gave us judicial review:

The only reason federal courts sit in judgment of the constitutionality of federal legislation is not because they are explicitly authorized to do so in the Constitution. Some modern constitutions give the constitutional court explicit authority to review German legislation or French legislation for its constitutionality, our Constitution doesn’t say anything like that. But John Marshall says in Marbury v. Madison: Look, this is lawyers’ work. What you have here is an apparent conflict between the Constitution and the statute. And, all the time, lawyers and judges have to reconcile these conflicts — they try to read the two to comport with each other. If they can’t, it’s judges’ work to decide which ones prevail. When there are two statutes, the more recent one prevails. It implicitly repeals the older one. But when the Constitution is at issue, the Constitution prevails because it is a “superstatute.” I mean, that’s what Marshall says: It’s judges’ work. (W)

Problems arise, however, when we don’t treat the Constitution as a text with a fixed meaning:  

If you believe, however, that the Constitution is not a legal text, like the texts involved when judges reconcile or decide which of two statutes prevail; if you think the Constitution is some exhortation to give effect to the most fundamental values of the society as those values change from year to year; if you think that it is meant to reflect, as some of the Supreme Court cases say,

particularly those involving the Eighth Amendment, if you think it is simply meant to reflect the evolving standards of decency that mark the progress of a maturing society — if that is what you think it is, then why in the world would you have it interpreted by nine lawyers? What do I know about the evolving standards of decency of American society? I’m afraid to ask.

If that is what you think the Constitution is, then Marbury v. Madison is wrong. It shouldn’t be up to the judges, it should be up to the legislature. We should have a system like the English — whatever the legislature thinks is constitutional is constitutional. They know the evolving standards of American society, I don’t. So in principle, it’s incompatible with the legal regime that America has established. (W)

The Living Constitution replaces our representative democracy with an out-of-touch oligarchy — Why should nine justices determine how society is “evolving”? After all, notes Scalia, he himself was out of touch with the American people:

I'm not very good at determinating what the aspirations of the American people are. I am 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, and 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 to make the relevant decisions.

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, and you're right about this, then 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'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. (C)  

Originalism confines judges, and limits them to the meaning of the text. But under the theory of the Living Constitution, judges are given the power to govern the American people:

What is the criterion that governs the Living Constitutional judge? What can you possibly use, besides original meaning? Think about that. Natural law? We all agree on that, don’t we? The philosophy of John Rawls? That’s easy. There really is nothing else. You either tell your judges, “Look, this is a law, like all laws, give it the meaning it had when it was adopted.” Or, you tell your judges, “Govern us. You tell us whether people under 18, who committed their crimes when they were under 18, should be executed. You tell us whether there ought to be an unlimited right to abortion or a partial right to abortion. You make these decisions for us.” I have put this question — you know I speak at law schools with some frequency just to make trouble — and I put this question to the faculty all the time, or incite the students to ask their Living Constitutional professors: “Okay professor, you are not an originalist, what is your criterion?” There is none other. (W)

The Living Constitution kills the actual Constitution — When judges abandon originalism and the original meaning to the text of the Constitution, it is merely a matter of time before the Constitution itself is abandoned.

In the long run, non-originalism triumphant and rampant is the death knell of the Constitution. As I suggested earlier, the whole purpose of the Constitution is to prevent a future society from doing whatsoever it wants to do. To change, to evolve, you don't need a constitution. All you need is a legislature, as well as a ballot box. Things will change as fast as you want. You want to create new rights and/or destroy old ones? A legislature and the electoral franchise are all that you need. The only reason you need a constitution is because there are some things which you don't want a majority to be able to change.

That's my most important function as a judge in the American legal system. I have to tell the majority to take a hike. I tell them: “I don't care what you want. The Bill of Rights 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 judges to decide what the Constitution ought to mean? The people comprising the popular or legislative majority will do that only if they think the decisions of the courts will be supportive of their particular interests, values, and opinions. If there are no fixed legal standards, if the justices on the Supreme Court are supposed to tell us what are the evolving standards of decency that reflect a maturing society, a majority of the people and its political leadership will look for judges who agree with the majority as to what the Constitution means. And so we will have the absolutely crazy system in which we conduct a mini-plebiscite on the meaning of the Constitution every time we select a person to fill a vacancy on the Supreme Court.

Why nominations to the Supreme Court have become of existential importance to our nation — When Scalia was nominated for the Supreme Court, he was approved by the Senate 98-0. He explains why that can’t happen today:  

Today, barely 20 years later, it is difficult to get someone confirmed to the Court of Appeals. What has happened? The American people have figured out what is going on. If we are selecting lawyers, if we are selecting people to read a text and give it the fair meaning it had when it was adopted, yes, the most important thing to do is to get a good lawyer. If on the other hand, we’re picking people to draw out of their own conscience and experience a new constitution with all sorts of new values to govern our society, then we should not look principally for good lawyers. We should look principally for people who agree with us, the majority, as to whether there ought to be this right, that right and the other right. We want to pick people that would write the new constitution that we would want.

And that is why you hear in the discourse on this subject, people talking about moderate, we want moderate judges. What is a moderate interpretation of the text? Halfway between what it really means and what you’d like it to mean? There is no such thing as a moderate interpretation of the text. Would you ask a lawyer, “Draw me a moderate contract?” The only way the word has any meaning is if you are looking for someone to write a law, to write a constitution, rather than to interpret one. The moderate judge is the one who will devise the new constitution that most people would approve of. So, for example, we had a suicide case some terms ago, and the Court refused to hold that there is a constitutional right to assisted suicide.

We said, “We’re not yet ready to say that. Stay tuned, in a few years, the time may come, but we’re not yet ready.” And that was a moderate decision, because I think most people would not want — if we had gone, looked into that and created a national right to assisted suicide, that would have been an immoderate and extremist decision. (W)

The Living Constitution + Majoritarianism = Recipe for Destruction — The Living Constitution has only been around for about 50 years. But it is already appears poised to undermine 200 years of the rule of law:  

The Bill of Rights is devised to protect you and me against, who do you think? The majority. My most important function on the Supreme Court is to tell the majority to take a walk. And the notion that the justices ought to be selected because of the positions that they will take, that are favored by the majority, is a recipe for destruction of what we have had for 200 years.  

Joe Carter

Joe Carter is the author of The Life and Faith Field Guide for Parents, the editor of the NIV Lifehacks Bible, and the co-author of How to Argue Like Jesus: Learning Persuasion from History’s Greatest Communicator. He also serves as an executive pastor at the McLean Bible Church Arlington location in Arlington, Virginia. Read More

Article 12: The Future of AI

We affirm that AI will continue to be developed in ways that we cannot currently imagine or understand, including AI that will far surpass many human abilities. God alone has the power to create life, and no future advancements in AI will usurp Him as the Creator of life. The church has a unique role in proclaiming human dignity for all and calling for the humane use of AI in all aspects of society.

We deny that AI will make us more or less human, or that AI will ever obtain a coequal level of worth, dignity, or value to image-bearers. Future advancements in AI will not ultimately fulfill our longings for a perfect world. While we are not able to comprehend or know the future, we do not fear what is to come because we know that God is omniscient and that nothing we create will be able to thwart His redemptive plan for creation or to supplant humanity as His image-bearers.

Genesis 1; Isaiah 42:8; Romans 1:20-21; 5:2; Ephesians 1:4-6; 2 Timothy 1:7-9; Revelation 5:9-10

Article 11: Public Policy

We affirm that the fundamental purposes of government are to protect human beings from harm, punish those who do evil, uphold civil liberties, and to commend those who do good. The public has a role in shaping and crafting policies concerning the use of AI in society, and these decisions should not be left to those who develop these technologies or to governments to set norms.

We deny that AI should be used by governments, corporations, or any entity to infringe upon God-given human rights. AI, even in a highly advanced state, should never be delegated the governing authority that has been granted by an all-sovereign God to human beings alone. 

Romans 13:1-7; Acts 10:35; 1 Peter 2:13-14

Article 10: War

We affirm that the use of AI in warfare should be governed by love of neighbor and the principles of just war. The use of AI may mitigate the loss of human life, provide greater protection of non-combatants, and inform better policymaking. Any lethal action conducted or substantially enabled by AI must employ 5 human oversight or review. All defense-related AI applications, such as underlying data and decision-making processes, must be subject to continual review by legitimate authorities. When these systems are deployed, human agents bear full moral responsibility for any actions taken by the system.

We deny that human agency or moral culpability in war can be delegated to AI. No nation or group has the right to use AI to carry out genocide, terrorism, torture, or other war crimes.

Genesis 4:10; Isaiah 1:16-17; Psalm 37:28; Matthew 5:44; 22:37-39; Romans 13:4

Article 9: Security

We affirm that AI has legitimate applications in policing, intelligence, surveillance, investigation, and other uses supporting the government’s responsibility to respect human rights, to protect and preserve human life, and to pursue justice in a flourishing society.

We deny that AI should be employed for safety and security applications in ways that seek to dehumanize, depersonalize, or harm our fellow human beings. We condemn the use of AI to suppress free expression or other basic human rights granted by God to all human beings.

Romans 13:1-7; 1 Peter 2:13-14

Article 8: Data & Privacy

We affirm that privacy and personal property are intertwined individual rights and choices that should not be violated by governments, corporations, nation-states, and other groups, even in the pursuit of the common good. While God knows all things, it is neither wise nor obligatory to have every detail of one’s life open to society.

We deny the manipulative and coercive uses of data and AI in ways that are inconsistent with the love of God and love of neighbor. Data collection practices should conform to ethical guidelines that uphold the dignity of all people. We further deny that consent, even informed consent, although requisite, is the only necessary ethical standard for the collection, manipulation, or exploitation of personal data—individually or in the aggregate. AI should not be employed in ways that distort truth through the use of generative applications. Data should not be mishandled, misused, or abused for sinful purposes to reinforce bias, strengthen the powerful, or demean the weak.

Exodus 20:15, Psalm 147:5; Isaiah 40:13-14; Matthew 10:16 Galatians 6:2; Hebrews 4:12-13; 1 John 1:7 

Article 7: Work

We affirm that work is part of God’s plan for human beings participating in the cultivation and stewardship of creation. The divine pattern is one of labor and rest in healthy proportion to each other. Our view of work should not be confined to commercial activity; it must also include the many ways that human beings serve each other through their efforts. AI can be used in ways that aid our work or allow us to make fuller use of our gifts. The church has a Spirit-empowered responsibility to help care for those who lose jobs and to encourage individuals, communities, employers, and governments to find ways to invest in the development of human beings and continue making vocational contributions to our lives together.

We deny that human worth and dignity is reducible to an individual’s economic contributions to society alone. Humanity should not use AI and other technological innovations as a reason to move toward lives of pure leisure even if greater social wealth creates such possibilities.

Genesis 1:27; 2:5; 2:15; Isaiah 65:21-24; Romans 12:6-8; Ephesians 4:11-16

Article 6: Sexuality

We affirm the goodness of God’s design for human sexuality which prescribes the sexual union to be an exclusive relationship between a man and a woman in the lifelong covenant of marriage.

We deny that the pursuit of sexual pleasure is a justification for the development or use of AI, and we condemn the objectification of humans that results from employing AI for sexual purposes. AI should not intrude upon or substitute for the biblical expression of sexuality between a husband and wife according to God’s design for human marriage.

Genesis 1:26-29; 2:18-25; Matthew 5:27-30; 1 Thess 4:3-4

Article 5: Bias

We affirm that, as a tool created by humans, AI will be inherently subject to bias and that these biases must be accounted for, minimized, or removed through continual human oversight and discretion. AI should be designed and used in such ways that treat all human beings as having equal worth and dignity. AI should be utilized as a tool to identify and eliminate bias inherent in human decision-making.

We deny that AI should be designed or used in ways that violate the fundamental principle of human dignity for all people. Neither should AI be used in ways that reinforce or further any ideology or agenda, seeking to subjugate human autonomy under the power of the state.

Micah 6:8; John 13:34; Galatians 3:28-29; 5:13-14; Philippians 2:3-4; Romans 12:10

Article 4: Medicine

We affirm that AI-related advances in medical technologies are expressions of God’s common grace through and for people created in His image and that these advances will increase our capacity to provide enhanced medical diagnostics and therapeutic interventions as we seek to care for all people. These advances should be guided by basic principles of medical ethics, including beneficence, non-maleficence, autonomy, and justice, which are all consistent with the biblical principle of loving our neighbor.

We deny that death and disease—effects of the Fall—can ultimately be eradicated apart from Jesus Christ. Utilitarian applications regarding healthcare distribution should not override the dignity of human life. Fur- 3 thermore, we reject the materialist and consequentialist worldview that understands medical applications of AI as a means of improving, changing, or completing human beings.

Matthew 5:45; John 11:25-26; 1 Corinthians 15:55-57; Galatians 6:2; Philippians 2:4

Article 3: Relationship of AI & Humanity

We affirm the use of AI to inform and aid human reasoning and moral decision-making because it is a tool that excels at processing data and making determinations, which often mimics or exceeds human ability. While AI excels in data-based computation, technology is incapable of possessing the capacity for moral agency or responsibility.

We deny that humans can or should cede our moral accountability or responsibilities to any form of AI that will ever be created. Only humanity will be judged by God on the basis of our actions and that of the tools we create. While technology can be created with a moral use in view, it is not a moral agent. Humans alone bear the responsibility for moral decision making.

Romans 2:6-8; Galatians 5:19-21; 2 Peter 1:5-8; 1 John 2:1

Article 2: AI as Technology

We affirm that the development of AI is a demonstration of the unique creative abilities of human beings. When AI is employed in accordance with God’s moral will, it is an example of man’s obedience to the divine command to steward creation and to honor Him. We believe in innovation for the glory of God, the sake of human flourishing, and the love of neighbor. While we acknowledge the reality of the Fall and its consequences on human nature and human innovation, technology can be used in society to uphold human dignity. As a part of our God-given creative nature, human beings should develop and harness technology in ways that lead to greater flourishing and the alleviation of human suffering.

We deny that the use of AI is morally neutral. It is not worthy of man’s hope, worship, or love. Since the Lord Jesus alone can atone for sin and reconcile humanity to its Creator, technology such as AI cannot fulfill humanity’s ultimate needs. We further deny the goodness and benefit of any application of AI that devalues or degrades the dignity and worth of another human being. 

Genesis 2:25; Exodus 20:3; 31:1-11; Proverbs 16:4; Matthew 22:37-40; Romans 3:23

Article 1: Image of God

We affirm that God created each human being in His image with intrinsic and equal worth, dignity, and moral agency, distinct from all creation, and that humanity’s creativity is intended to reflect God’s creative pattern.

We deny that any part of creation, including any form of technology, should ever be used to usurp or subvert the dominion and stewardship which has been entrusted solely to humanity by God; nor should technology be assigned a level of human identity, worth, dignity, or moral agency.

Genesis 1:26-28; 5:1-2; Isaiah 43:6-7; Jeremiah 1:5; John 13:34; Colossians 1:16; 3:10; Ephesians 4:24