ARCHIVAL VIDEO: Justice Scalia Offers Remarks at University of Georgia

The conservative judge talks "originalism" on Apr. 6, 1989.
28:52 | 02/15/16

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Transcript for ARCHIVAL VIDEO: Justice Scalia Offers Remarks at University of Georgia
Thank you dean Ellington president map. Faculty and students of the University of Georgia. Ladies and gentlemen. It's a pleasure to be here and Athens on such a lovely day I'm sorry to. Bring all of you and me as well indoors. I'm also sorry to dean Ellington. He read from three opinions tour descends and one was a guitarist. As I think the amounts to a subject indicated. I intend to share with you today. A few thoughts on a a subject that is an occupying a fair amount of my concern lately. The constitution of the United States. If you've ever been to Hague. Formal dinner. In England. You'll recall that after. Dessert and coffee. And before is permitted to light a cigarette. It's customary for a chose to be presented. Which goes. Ladies and gentlemen the queen. And if you ever been to a diplomatic function in which. Both representatives of great Britain and of the United States or president. You will recall that it is the custom. For the Americans to replied of that toes. With another one ladies and gentlemen. The president of the United States. I've heard that progression. As early often. And every time I hear it. It strikes me wrong. The president is of course it. Both our chief executive and our head of state. Sort of the prime minister in the queen rolled into one. But if one wishes to we full. The deep and enduring symbol of our nation. Of our unity as a people. It seems to me. That the equivalent host. Should be ladies and gentlemen. The console. Two Russian. Of the United States. Where that is really the equivalent of the royal armies that they brought one nation out of how diversity. And it is not only the total and what. Indeed the substance. Of what continues to bind us together as a people. The constitutional scholar. And political philosopher Walter burns published a book. Several years ago. Entitled taking the constitution seriously. That's a play on words which the law professors and students here will understand. In fact he made in the striking observation striking to me at least because. I never thought. That the word yeah. Has no real equivalent. In any other language. It would it would mean nothing. In French political. Discourse. To call or particular idea let's let's say the abolition of rights of free speech. Under French. Orient German political debate call a particular idea under German. Unlike any other nation in the world. We consider ourselves bound together. Not by geology. Or by residents. What point can you believe my belief in certain principles. And the most important of those principles. Are set forth in the constitution of the United States. Such is the generation we have of the document in fact. This may not occur to you but we don't even amended it the way any sensible person and ends other documents. When statutes are reminded you take the only thrown out and is certain to win. The same is done with the most state constitutions. Excise the only insert afternoon. Not so we that generated document it is our United States constitution. To the contrary it. A foreigner should happen to read through the document. Unless he takes the trouble to read as far as the seventeenth amendment for example he believed that we elect our senators. By the state legislators. We we cannot leave menus at the end. That is how we lucky we are to touch that venerable lucky. That's symbol. Or an issue. When did it only with a symbol. Is that it comes to be taken for granted by the time you've gotten out of high school. You've heard phrase of the constitution so law. But you begin to suspect it's just a lot of jingoistic. Exaggeration. Than others and other countries' constitutions are in fact quite as good as our news and the only nothing exceptional about ours is that is ours. Well let me tell you little incident that. Persuaded me to the contrary. In the years when I was in the Department of Justice. I was the head of the division holy also legal counsel. While I was there the call relatives and office in the Italian government. Was celebrating its anniversary. And invited. They are corresponding figures from all the major countries of the world to go to Rome to celebrate. That office was called it was actually an office that combines the functions both of the solicitor general. And in my office the office of legal counsel. Function of giving advice to those two agencies. So I what I went from from Washington. From the Department of Justice those of you truly with the Justice Department building no limits. An art Deco building on constitution avenue. I know we're roll into the office of the awful Arizona philosophical. Which happens to be located. In a building that was the that is the former headquarters of the Palestinian mortar. Where Martin Luther lived when he was in Rome. And the mind reels. Forget the contrast. Between. The newness of feet my art Deco Justice Department. And easy street corners for these awful Palestine. With and it encouraged and the over what I don't stop it is celebrating. His hundredth anniversary. Big deal. I am coming from a nation. That is about to celebrate its 200. We have been a nation. Living under this one constitution. For more than a century and longer than Italy was anything more than in geographic description the description of a nation. For more than a century longer than Germany. Was anything more than in geographic description. France has been through fine written constitutions. While we've been living under this one. And something like eleven. Us systems of government if you if you count those without constitutions. So although we Americans may indeed be the new walls and we've been maybe even New Kids On The Block. In in many areas. In the field of government. We are the most venerable nation in the world. And our constitution. Is the most venerable. And successful system of government work. The wonder is durability of the document is attributable to a whole series. Both Iraq and global circumstances. Incredibly lucky if you will or as many of the founders thought probably bench. When else has a government been established. Not by conquerors dividing up the spoils. Or even my political parties parsley now. The power. But I 84 months seminar. Consisting of many of the most erudite. And politically experienced individuals in the nation. The historian Clinton Rossiter has described the prominence of the 55 delegates. To the constitutional convention. As follows. The republic had two men worldwide fame. And both were there. Was referring of course to George Washington Benjamin Franklin. Poor well home within the bounds of the old British empire. And at least five description where there Johnson Livingston Robert Morris Dickinson brunch. Gore. Jerry Sherman Ellsworth how Houghton. Mifflin. Will soon Madison. Nguyen. Williams and Charles Pinkney and the untroubled Mason. Had one themselves as best one could in those days of poor communications. Continental reputations. Why did Reid frank at all Alexander Martin. Jennifer and CC they need were major figures in their states and almost every other delegate. What someone who's spending was unchallenged in his part of the country. That's the end of cool. As for governmental experience all the tour three of the framers had served as public officials of a com heroes day. A remarkable 42 of the 55 and served in the congress of the United States under the articles of confederation. And as for education. In an age when few who even from the Regis founds went to college. The 55 members of the convention including nine graduates of the college's new jurors. Now Princeton. For graduates of Yale. For from William Merritt three from Harvard. To from King's College now Columbia. Two from the college of Philadelphia now the University of Pennsylvania. And one each from Oxford is a hands. Several others had studied law audience of court. And a number of those mentioned earlier. Had done graduate work. The professors here will be. Pleased to note that six. Of the 55. Held professorship through judicious. These extraordinary individuals. Quite literally a large part of the cream of the society at that time. Did not need a couple of times. To vote on reports prepared by their staff. Which is of course the way it would be done today. They met personally fine we're six days a week. 5 or six hours a day. From meeting may until mid September. Almost an entire baseball season. And after the plenary sessions. They often fill their evenings with committee work were informal discussion. Imagine. Getting individuals. Own equivalent products in our society today soon to devote that kind of time. To that kind of project. Yale university press. Has recently come out with a paperback. Edition. For ranch records of the convention. Consisting principally of course of the notes the James Madison kept. Irish. Especially those of you who are interest in the law some rainy weekend too to read them. They are. Full of the spirit of the age of reason. The belief that it seems almost naive to us cynical modern ones. That the application of logic and experience to any problem will produce if not perfection at least improvement. They were engaged in the enterprise of what James Madison called the new science of government. The records are also full of the spirit are open honest discussion. And persuasion what what impresses the rear of those records is how often. The views that that are expressed by one of the delegates. At the end of the convention are quite different from that uses the same person expressed at the beginning. Because in the injure and he had been persuaded by. By the comments of his colleagues. I might interjected that openness to persuasion is as essential. To the continuation of our republic as it was to its formation. So also is the spirited humiliation. And a generous acceptance of the majority's judgment. Expressed in the famous concluding speech of Benjamin Franklin when he urged all of the delegates on the last day of the convention. To come forward and sign a final document. We have that speech in its original form since Franklin. Who was 81 and in poor health was unable to stand long enough to read it. So he gave the written test to James Wilson to read Wilson later gave it to Madison to copy. Concluding speech of the great man went as follows. And part. Mr. President. I confess. That there are several parts of this constitution which I do not prove. But I am not sure I shall never approves. For having lived long I have experienced many instances. Well being applied by late like better information. Or Fuller consideration. To change opinions even on important subjects. Which I once thought right were found to be otherwise. It is therefore. That the older I grow. The more ask Diane to doubt my own judgment. And to pay more respect to the judgment of others. Franklin is a very quietly telling me gas from its. In these sense error. I agreed to this constitution when all is false if they are such. Because I think in general government necessary for us in there is no form of government but what may be a blessing to the people if well administered. And I believe farther that this is likely to be well administered for a course of years. When he says that where's he's looking back over his shoulder. To the president of the convention who is George Washington everybody knows has a lot of the presidency for the first. Few years anyway. I doubt tube. Whether any other convention we can obtain may be able to make a better constitution. For when you assemble a number of men to have the advantage of their joint wisdom. You inevitably is Sobel in those men. All their prejudices their passions their areas of opinion there local interests. And their selfish views. From such an assembly. Cannot perfect production be expected. It therefore astonishes me sir. To find this system approaching so near perfection as it does and I think it will astonish our enemies. Plus I can censor to this constitution. Because I expect no better. And because I am not sure that it is not the best. The opinions I have out of its errors. I sacrificed to the public good. I have never we spirit is still love them abroad. Within these walls they were born. And here they shall not. And Franklin kept good on that promise as did almost all of the other members of the convention. Not criticizing the document in the U in the years. Path leading to ratification and follow. Even though none of them fought every single provision. That was the way he would most of desire. Instead a lot about the process. That unique convention. Framed this document. Let me say just a little bit about its product. That product did not include. The portion of the constitution. That lawyers are most occasion to involved. The bill of rights. That was added as you know. On the proposal of the first congress. As the first ten amendments to the constitution. Although an understanding that something of the sort would be proposal was virtually condition of ratification by several states. It is paradoxical Haller. That what was and have. We thought. Should have become. The most celebrated featured constitution. In the commemoration of the bicentennial in we've been been. Going through it and will continue to to go through until until. 1991 which is the anniversary of the bill of rights. In in those celebrations. The specific provisions better normally given the most. Extensive midnight dvd exclusive attention. Are not. Quite how morality of the legislature. Whether separate election. Of the president. Well a presidential veto power. Our light here for judges. Florida brief two year terms for members of the house or the six year terms for members of the senate or writing the other expertly crafted. Provisions that pertain to the structure. That is to say hello constitution. Our government. But matter. Freedom of speech freedom of religion freedom of the press and so forth provisions of the subsequently adopted bill of rights so completely. Does that portion of the document but tracked the affection and devotion. Of the people. But if the virtue of the constitution. Is to be assessed primarily. On the basis of that popular feature. One must admit. That the constitution of the United States fare is rather poorly. Take for example provisions. Against governmental intrusion on privacy. The United States bill of rights contains. Nothing more explicit on the following. The right of the people to be secure in their persons houses papers and effects. Against unreasonable searches and seizures. Shall not be violent. And no warrants shall issue but upon probable cause. Supported by oath or affirmation. And particularly describing the place to be searched and the persons or things to be ceased. Well compare that with the much more explicit. And extensive guarantees. That are set forth in. A prominent modern constitution. Which reads citizens are guaranteed in vial ability of the person. No one may be arrested except by a court decision. Or on a warrant for profit rate. Citizens are guaranteed in file ability of the home. No one name without lawful grounds enter a home against the will of those resigning him. The privacy of citizens and other correspondence. Telephone conversations. And telegraph communications. Is protected by law. Or consider freedom of religion. Our First Amendment says no more than following congress shall make no law respecting an establishment of religion. Or prohibiting the free exercise thereof. Compare that have. Prominent modern constitution which says citizens are guaranteed freedom of conscience. That is the right to profess or not to prevents any religion. And to conduct religious worship or atheistic propaganda. Incitement a hostility or hatred on religious grounds is prohibited. Or freedom of speech and assembly. As to which. The United States constitution says only congress shall make no law abridging the freedom of speech or of the press. We're on the right other people peaceably to assemble and to petition the government for a redress of grievances. Compare that poultry guarantee. With a modern constitution I've been describing this as. Citizens are guaranteed freedom of speech of the press. And of assembly meetings street processions and demonstrations. Citizens have a right to associate in public organizations that promote their political activity an initiative. Persecution. For criticism of state bodies and public organizations is prohibited. Persons guilty of such persecution. Shall be called to account. You will see the white I have been driving towards indeed you have probably already guessed it. When I tell you that the modern constitution I have been describing as that of the union of Soviet socialist republics. I would not trade our. Bill of rights. Our constitution for that in the years. A country other than my home. In which I thought why individual rights would be most secure. I would very likely choose England or Australia. Both of which are along the significant holdouts in the universal moving towards bills of rights. The reason of course. Is that the bill of rights only has value. If the other part of the constitution. The part that really constitutes the organs of government. Establishes a structure that. Is likely to preserve. And against the in Iraq global human lust for power. Those liberties that the bill of rights expresses. If the people value of those liberties. The proper constitutional structure will ask Madison and the others are likely result in their preservation even the absence of a bill of rights. And whereas structure does not exist. The mere recitation of the liberties. Will certainly not preserved. So while it is entirely appropriate for us Americans in this bicentennial celebration of our founding. To celebrate and decorate. Our wonderful bill of rights. We should realize. That it represents the fruit. And not the roots. Of our constitution tree the rights and expresses are the reasons that the other provisions exist. But eighties those other homegrown provisions. That are frequently called in litigation reform like court technical. It is those other humdrum revisions. To structural mechanism did portions of the constitution. Which in James Madison were Madison's words PA ambition against ambition. And make it impossible for any element of government to obtain unchecked power he's suppose. Humdrum provisions. That convert the bill of rights. From a paper assurance. To a living guarantee. So it it's a lot easier to get a crowd to form behind a banner that at least freedom of these your dad. Then behind one that says why Powell is a more fight. Please fax. In fact. The latter goes much more to the hard. One final thought. All provisions. Of the constitution the bill of rights in the structural portions as well. Will endure in practice. Only so long as they endure in the minds and the hearts of the people. We have seen for example only a significant dipping it not be utter disappearance. The concept of enumerated. And hence limited federal power contained in the original document. It's not the commerce clause changed her was amended its just that the people's concept. Of what appropriately came within it and all. Bad alteration in the people's understanding was first expressed as it always is. Through the people's elected representatives. Who are the first and ultimately the most influential interpret news of what the constitution leads. The Supreme Court students wore that altered understanding. In the first quarter of this century. But ultimately yielded. As for better or worse. It must ever yield. To the persistent. Long term view of this society at large. The court can Stanton. Against the distortion of original understanding. Produced by the temporary excess of one brief error. The error of McCarthyism if you need an example. In the nature of things. The Supreme Court cannot stand against a departure from our traditions. That is deep and sustained. As the new view of the commerce powers assuredly was. The reason for that is quite simple. It's not that the existing members of the court appeal to public pressure. Or to the desire to be loved in the press or anything of that so to the contrary. The reason. Is simply that the judges of the court are not dispatched from Mars. What are drawn ultimately over the long term from the same society. Then shares that new understanding. So we'll be understanding persists long enough for better or worse it will ultimately prevail. I say for better or for worse because it is not always for the better. The new understandings do not always for example. Expand rather than constrict friend in the schools. And toy in the university's. Will ultimately be the body of knowledge and belief that new justices. Bring wind and to the bench. The constitution willing door in other words. Only to the extent that it indoors eat your understanding and affection. That is why I used to find it so upsetting. When I taught constitutional law. To learn how many law students in major universities. The best and the brightest and presumably those most interest in the law. Have never read cover to cover. Such a basic part of our constitutional tradition as the Federalist papers. And it is why. I thought it worth the time. To speak to you about the constitution. Is that.

This transcript has been automatically generated and may not be 100% accurate.

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