Antonin Scalia Unplugged: Wants to Kill ‘Living’ Constitution

Oct 6, 2011 1:06pm

Justice Antonin Scalia couldn’t help himself.

Sitting on the dais at the Newseum, a Washington, D.C., museum dedicated to the value of a free press, he knew he probably shouldn’t bring up the landmark libel case New York Times v. Sullivan.

The 1964 Supreme Court defined “actual malice” as the standard for determining libel cases involving public figures.  The case forever changed libel law.  And, as Scalia has said before, he believes it was wrongly decided.

At this morning’s session, Scalia said the decision was the product of the “living” constitutionalists who adopt the values of the framers to the evolving world. Scalia rejects that line of thinking. “I look to the words of the Constitution,” he said, “but I ask what did those words mean to the society that adopted them.”

He said that in NYT v. Sullivan, the court mistakenly thought that  “in modern society, it would be a good idea that the press could say a lot of things … without worry.”

Scalia reiterated that if it was such a good idea, then it “should have been adopted by the people” in the legislature, not in the courts.

Dripping with disdain, Scalia said, “the ‘living’ constitutionalist  feel free to say, ‘Well, it’s  a new day, we can have new rules.’”

The event, sponsored by the Atlantic, the Aspen Institute and the Newseum, is a two-day “ideas forum” featuring conversations with some of the most notable policy makers, business leaders and journalists.

It was Scalia’s  second public appearance off the bench in as many days.

Scalia, joined by Justice Stephen Breyer, dazzled the Senate Judiciary Committee Tuesday afternoon in a hearing aimed at discussing the role of judges under the Constitution.

“I’m happy to be back in front of the Judiciary Committee  where I started this pilgrimage” Scalia said,  referring to the hearings that lead to his confirmation and the past 25 years on the Supreme Court bench.

The unusual hearing was chaired by Sen. Patrick Leahy, D-Vt., who, in his opening statement, pointed to the renewed focus on the Constitution in the public sector in recent months and his fear that it was at times misunderstood.

Scalia and Breyer have often appeared together to spar cheerfully with each other about their starkly different views regarding the notion of a living Constitution.

“I’m hoping that the ‘ living’ Constitution will die,” Scalia said, adding that the controversial nature of recent confirmation proceedings is partly attributable to a notion that the Constitution evolves. “It’s like having a mini-constitutional convention every time you select a new judge.”

But Breyer, no stranger to Scalia’s views, struck back, saying that Scalia’s view could produce “rigidity” and interpretations that might not work for people living in the 21th century.

The two justices spent more than two hours, dismissing the usual protocol of time-limited answers,  and talked in broad terms about the separation of powers, the court’s shrinking docket, the use of legislative history and cameras in the court room.

The Senators at time were positively giddy to hear such substance and to get the chance to interact with members of the third branch of government

Scalia talked about the distinctiveness of the structure of the U.S. government and said that  Americans have to  “learn to love” the separation of powers, which means “learning to love the gridlock.”

He said the gridlock exists in part so that the legislation that gets out will be “good legislation.”

Asked about the Court’s shrinking docket, both men said they didn’t know why the court has taken fewer cases in recent years. But  Scalia  said that when he joined the court, there “was a lot of breathtakingly important new legislation” that lead to more cases in front of the court and that in recent years there has been “nothing of that magnitude.”

Breyer spoke about how he studies the legislative history of a law when trying to understand its meaning.

Scalia objects to using legislative history when considering a law. “Our object is to figure out what the law says,” he retorted, not what Congress might have meant.

Sen. Leahy asked the men if they thought it might be a good idea to use one of the three retired justices to sit on the bench when a justice is forced to recuse himself or herself from a case.

Scalia , immediately skeptical , wondered  who would choose which retired justice would sit.  ”I don’t think that would make anyone happy,” he said, noting that the are few cases where the court is equally divided.

Breyer said he hadn’t thought the issue through but it “sounds like there might be problems.”

Both justices said that cameras in the courtroom are not likely to occur any time soon.

Scalia said he was initially in favor, but has come to believe that most people would only see the use of just a 30-second sound bite from a particular hearing and that would be destructive. He said that while some might learn from the proceedings, the majority would only see a “30-second take out, which I guarantee would not be representative of what we do.”

Breyer agreed, saying the court does not want to take such a decision that might hurt the court in the long run.

At the end of the hearing, Sen. Sheldon Whitehouse, D-R.I., told the men he was impressed that they were willing to return to the Judiciary Committee so many years after their confirmation hearings.

“I think we have enjoyed it,” Scalia said, “to our surprise.”

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