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Owen J. Roberts Memorial Lecture

Both candid and disarming during a lecture at Penn Law, U.S. Supreme Court Justice Antonin Scalia made it clear he prefers the vintage Constitution to revised versions.

Scalia, a self-described “ancient mariner” of Constitutional interpretation who stands by the meaning of the original text, visited the Law School last February to lament the movement to rewrite the nation’s highest laws. He spoke to a packed house at the University Museum.

In his introduction, Penn Law Dean Michael Fitts called Scalia “one of the most significant and influential figures in the legal profession today.” He also said Scalia, perhaps as much as anyone, has helped frame national debate on the U.S. Constitution, the judiciary, federalism, and separation of powers. Scalia has served on the U.S. Supreme Court since 1986.

Of this there can be little debate: Scalia holds strong opinions. In a setting dedicated to preservation, Scalia asserted: “The Constitution is not a living organism, it’s a legal document. It says what it says …This is very much a minority view these days. (But) it’s not weird. It was orthodoxy until very recently.”

According to Scalia, most people hewed to a strict reading of the Constitution until the mid to late twentieth century, when politics took over, ushering in the era of “The Living Constitution,” wherein proponents believe laws should evolve as society changes. Scalia disagrees.

Appointed by President Reagan, Scalia blamed both conservatives and liberals for trying to mold the Constitution in their own image. “Each side, right and left, is looking for people who will read in the rights they like and read out the rights they don’t like,” he said.

Conservatives applaud decisions that reward big business; liberals cheer decisions that support sexual preferences. “If you believe in a Living Constitution, you have to acknowledge that it can cut in both directions,” Scalia said.

Lamenting the effect activism exerts on law, Scalia said you may as well take public opinion polls or consult political philosophers if you’re not going to consider the U.S. Supreme Court the last word on issues such as abortion or the death penalty.

Scalia also complained that politics taints judicial selection, leading to vacancies on the federal bench, as Democrats hold up President Bush’s appointments, just as Republicans did to President Clinton’s. “Even court of appeals’ confirmation hearings (have become) contentious … because we are selecting the people who will govern us,” Scalia said.

Scalia finds ideology in legal opinions so odious that, no matter how it pained him, he cast the deciding vote in Texas v. Johnson to uphold a person’s right to burn the flag. He said he found the act repulsive but was compelled, nonetheless, to protect the right to free speech. Scalia offered an old-fashioned remedy for political change: the ballot box.

“If you want something … abortion rights, gay rights … go out and convince your fellow citizens and pass a law,” Scalia said.

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