On Tuesday, March 4th Supreme Court Associate Justice Antonin Scalia spoke at the University of Central Missouri in Warrensburg.
Justice Antonin Scalia
Questions for Justice Scalia (continued). Read by James Staab from written questions submitted by the audience:
[As an originalist how do you handle a case like Brown versus Board of Education 1954 where arguably the original understanding of the equal protection clause did not prohibit segregation in public schools?]
That is a very good question and it’s often asked. We, we originalists, uh, refer to this as, uh,”waving the, the bloody red shirt” of Brown versus Board of Education. Uh, there are two answers. Number one, and less important, I think I would have been with the majority in Brown because I think I would have been with, uh, Justice Harlan in Plessy. Plessy versus Ferguson, which was a case, uh, in the 19th century which held that the state of Louisiana could require blacks to ride in a separate railroad car….and the court said that was okay and Harlan dissented…I think I would have been with Harlan in Plessy so I think I would have been with the majority in, in Brown.
But that, that’s the less important answer. Look, I will stipulate…that you can do some good things with, uh, uh ignoring the Constitution. With the living Constitution letting the court, the judges make it up. I’ll stipulate. I mean kings can do stuff that democratic , uh, legislatures can’t achieve. So what? Does that prove that kings are better? A stopped clock is right twice a day. [laughter] I’ll grant you, that, that, that some things can be achieved but that isn’t the basis for judging it. Whether now and then it produces a result you like. You have to look at the whole system and say, “Is this the way a democratic society should govern itself?”
And the answer is, “No.”
[What do you think about the Tenth Amendment of the United States Constitution, the reservation of powers to the states?]
I don’t think [garbled] it very much. [laughter] As I think our opinion holds, so what else is new? It’s just, it’s the repetition of uh, of, of the understood fact that the Federal Constitution is a constitution of enumerated powers. The only powers the Federal government has are those given it by the Constitution. And that all the other ones remain with the states. That’s why, you know, I mean the Federal government has branched out into stuff that the framers wouldn’t have thought it had any business being in. But there’s still a lot of fields where the Federal government doesn’t touch, like family law.
Ever think of it? There are no Federal statutes on marriage, on, uh, divorce, on adoption. All that stuff. So, the Tenth Amendment is just a repetition of what everybody understood the Constitution would be anyway.
[Have you ever regretted one of your decisions, or realized that it resulted in unintended consequences?]
Only once. Uh, and I did it, uh, manfully. [laughter] I confessed error in, in a case involving,uh, the issue was the meaning of, uh, Section 5 of the Fourteenth Amendment. Uh, which the Fourteenth Amendment is the post Civil War amendment that, uh, uh, requires the states to accord equal protection of the laws and, uh, uh, forbids them from denying, uh, uh, due process. Uh [sigh], and Section 5 of the Fourteenth Amendment says that the provisions of this article shall be enforceable by the Congress. And the issue is, what does “enforceable by the Congress” mean? During the era of civil rights we had several decisions which held that the Section 5 means that Congress can go beyond merely enforcing what the Constitution requires and it can impose prophylactic measures. For example, Congress could prohibit, uh, literacy tests in voting in those states that had been using them abusively. You know, ask, ask blacks to spell “antidisestablishmentarianism” instead of “dog”, which… Uh, now that was prophylactic. It’s no violation of the Constitution to have a literacy test, assuming you apply it, uh, impartially.
None the less, we said, fifth, Section 5 means you could go beyond what the Constitution requires. Well that leads is into trouble. And, at one point I, uh, acceded to the notion that you could have prophylactic, uh, application of Section 5. Uh, after a couple of decisions demonstrating the consequences of that I recanted and my current position is I will continue to allow prophylactic use of Section 5 in the civil rights area on the basis of stare decisis, but in every other field to enforce the Constitution means to enforce the Constitution. You don’t enforce a 65 mile speed limit by preventing people from going over 55. That’s not enforcement. It’s prophylaxis, but it’s not enforcement. That’s the one area where I have regretted and, uh, ‘fessed up. [laughter]
[What disadvantages do you see in the increasing scope of executive power under the Bush administration?]
[sound: Pppfff] [laughter] What’s the next question? [laughter]
[In your view what is the appropriate level of senatorial review of Supreme Court nominees?]
…I think they’re entitled to ask whatever they want. And I think the nominee is entitled not to answer as much as he thinks he can get away with. I didn’t answer anything. [laughter, applause]…
[It is an election night, so, in your opinion which of the apparent three final presidential candidates will appoint judges that would interpret the law rather than rewrite the law?]
What’s the next question? [laughter] [pause][Stabb: “I’m looking.”][laughter] I have a deal with, basically, with the Senate and, and you know, political candidates, who, who. I leave them alone, they leave me alone. [laughter]
[Do you believe that the exclusionary rule is required under the Fourth Amendment?]
Uh. [laughter] We’ve held it…that’s water under the bridge. That’s one of those things that I think is, uh, is accepted jurisprudence. It’s no use my badmouthing it. Uh, I don’t think that’s gonna change.
[Do you believe that there is a right to privacy under the United States Constitution?]
Oh, there certainly is and it us, uh, contained in the Fourth Amendment. And it says “that the people shall be secure in their persons, houses, papers and effects against unreasonable searches and seizures.” Period. There is not a generalized right of privacy, whatever that means. What is a generalized right of privacy [garbled]? One of our, one of our, one of our opinions says it means “the right to be left alone”. [laughter] Right. This is anarchy…
…[wire tapping] So, there is no, what should I say, exclusion from democratic debate of – conversations. It’s something for the people to decide whether you should have wiretapping or not….[as practice now]…This generalized right of privacy which comes from, what is it, penumbras and emanations from the Fourth and a lot of other ridiculous stuff. Uh, you know the consequences of that? Surely one of the major policy issues around these days is whether, uh, the Federal government can listen in on these international phone calls to find what the bad guys are doing. It used to be up to the Congress to decide whether the danger was high enough and the risk of invading people’s privacy high enough to permit that. No longer. It’s a question for me now. It
‘s a question for me. That’s what happens when you, when you read more and more stuff into the Constitution – you reduce democracy.
Student protesters on the Quad