There are two defining characteristics of Supreme Court Justice Antonin Scalia. The first is that the Constitution is a literal document and that original intent of the authors is the sole guiding legal principle, and the second is that only he, Justice Scalia can know and properly interpret what the original intent of the authors was. And not surprisingly the original intent according to Justice Scalia fits nicely with Justice Scalia’s ultra conservative views.
Kye R. Lee/Staff Photographer
“The judge who always likes the results he reaches is a bad judge,” said Supreme Court Justice Antonin Scalia (right), with law professor Bryan A. Garner on Monday.
Final conclusive evidence of this position was revealed recently by Justice Scalia himself.
He spoke of schoolchildren coming to visit the Supreme Court and calling the Constitution a “living document.”
“It’s not a living document. It’s dead, dead, dead,” he said.
By this the Justice presumably means that only a literal reading of the Constitution is acceptable. But that is not possible. The Constitution lays out specific procedures (how to elect a President, how to appoint judges etc) but it also lays out a set of principles of government, and those principles must be applied by the legislature, the executive branch and the judiciary. But Justice Scalia is blind to this aspect of the Constitution, it is as though he has never read it.
For example, the Constitution prohibits cruel and unusual punishment, but that is a principle and the authors surely knew that the standard would change over time, which is why they wrote it that way instead of naming specific punishments they would prohibit. But if Justice Scalia is correct, the Constitution means that only punishments that were cruel and unusual in 1787 are prohibited, meaning that hanging, flogging, and other practices we now recognize as hideous are Constitutional.
Similarly, under the interpretation of Justice Scalia only those firearms present in 1787 receive protection, and the government would be Constitutionally free to control or even ban every type of weapon developed since then. Of course Justice Scalia would never support such a position, as it would conflict with his personal beliefs which he values above all else, even the Constitution.
A real test for Justice Scalia will come in a upcoming decision on whether or not the Federal government can regulate marriage. There is no basis for that in the Originalist thinking on the Constitution, but of course Justice Scalia wants to have the Federal government have that power, so it can persecute the gay and lesbian community, so look for him to want to write a significant new expansion of Federal authority into the Constitution, all by himself.