National Public Radio "All Things Considered" Part II
MS. TOTENBERG: Justice Scalia is blunt about his view of the Constitution. Here's how he put it in one speech:
JUSTICE SCALIA: (From audio excerpt.) The Constitution that I interpret and apply is not living, but dead.
MS. TOTENBERG: The Constitution, he believes, is not flexible and its meaning cannot change over time. It was meant, he says, to impose rigid rules that cannot be changed, except by the difficult process of constitutional amendment.
JUSTICE SCALIA: Now, if you somehow adopt a philosophy that the Constitution itself is not static, but rather, it morphs from age to age to say whatever it ought to say -- which is probably whatever the people would want it to say -- you've eliminated the whole purpose of a constitution. And that's essentially what the "living constitution" leaves you with.
MS. TOTENBERG: Scalia's critics contend he applies this view conveniently -- that he ignores the original intent of the framers when it suits him. For example, the writers of the 14th Amendment, which guarantees equal protection of the law, also enacted some racial preferences. The debate at that time, after the Civil War, mirrored today's debate over Affirmative Action, and racial preferences for former slaves and black soldiers prevailed.
The argument made by Scalia's critics is that the men who wrote the 14th amendment clearly intended, and did in fact allow racial preferences, to give black citizens a leg up in achieving their rightful place in society. And that, the argument goes, was the original intent of the 14th amendment.
JUSTICE SCALIA: I deny that. I don't think they were race specific. I think they were based upon the previous condition of servitude.
When you have a text that says you cannot discriminate on the basis of race, it means you cannot discriminate on the basis of race.
MS. TOTENBERG: Scalia's constitutional view has come to be called "orginalist". And at one point in his life, the justice conceded, he was a faint-hearted orginalist. That's because originally, the Constitution's Bill of Rights did not apply to the states. And that would mean that state governments could discriminate on the basis of race or sex, that they could censor speech and almost certainly could establish official churches or engage in practices like compulsive sterilization. It would mean that practices like notching the ears of prisoners, which was accepted in 1791, would not be considered cruel and unusual punishment in modern times.
JUSTICE SCALIA: Well, I said I thought I might be a faint- hearter. I've decided I'm not. You know, I'm a hardhat orginalist.
MS. TOTENBERG: Not that he wants to undue all the decisions of the past that he disagrees with.
JUSTICE SCALIA: You can't reinvent the wheel. You've got to accept the vast majority of prior decisions. And I do that. When I argue for a return to orginalism, I do not argue that all of the mistakes made in the name of the so-called living constitution be ripped out. I just say, you know, hey, you know, let's cut it out. Go back to the good, old dead Constitution.
MS. TOTENBERG: In other words, he says, let bygones be bygones.
That puts Scalia in a decidedly different camp than fellow conservative Justice Clarence Thomas, who Scalia concedes is far more willing to reverse past precedent.
JUSTICE SCALIA: I am a textualist. I am an originalist. I am not a nut. And the mistakes that have been made -- just let them lie. But let's cut out this living Constitution approach, because it really places no restraints upon your judges.
MS. TOTENBERG: To illustrate his view, he points to the question of assisted suicide. Scalia and all of his fellow justices in 1997 upheld state bans on physician-assisted suicide for terminally ill patients.
But Scalia observes that decision means only that there's no constitutional right to physician-assisted suicide. States are free to ban the practice or legalize it. And he pointed to Oregon, which has legalized it.
JUSTICE SCALIA: I have no problem with Oregon doing what it has done legitimizing assisted suicide.
MS. TOTENBERG: Didn't you dissent when the court -- when that case came here?
JUSTICE SCALIA: What case?
MS. TOTENBERG: Didn't you say that the assisted suicide law violated a federal narcotics law?
JUSTICE SCALIA: Not the Oregon law that I'm talking about. I think Oregon, if it wishes to legitimize suicide, can do so.
MS. TOTENBERG: In fact, though, in the Oregon case Scalia dissented on grounds other than the Constitution when the court upheld the assisted suicide law. He would have invalidated it as a violation of the federal narcotics law.
Scalia's critics accuse him of judicial activism, noting that the more conservative court of recent years has invalidated far more federal laws than the more liberal court of years gone by. Scalia says that's nonsense.
JUSTICE SCALIA: Just as there is such a thing as an activist court, there is assuredly such a thing as an activist Congress, which pushes the envelope with statutes that do things that had never been attempted before.
And where that happens, you should expect a greater proportion of those congressional enactments to be invalidated. MS. TOTENBERG: And not just congressional actions. Indeed, Scalia has surprised some critics with his hard-line view on what he sees as the excesses of the Bush administration in at least one area -- the imprisonment without charge of U.S. citizens accused of being enemy combatants.
JUSTICE SCALIA: They couldn't hold them indefinitely. As with anybody arrested, you bring them to trial or you let them go.
MS. TOTENBERG: If in all this, Scalia sounds like a tough guy, his friends say he has a heart of mush. An only child, he and his wife, Maureen, have raised nine children to adulthood, including one in the military and one in the priesthood.
JUSTICE SCALIA: I take very little credit for the children. I was home for dinner. That was about it.
MS. TOTENBERG: She takes very good care of you too.
JUSTICE SCALIA: She does that too. She says she has 10 children.
MS. TOTENBERG: Justice Antonin Scalia. His book, written with coauthor Brian Garner, is entitled "Making Your Case: The Art of Persuading Judges."
Nina Totenberg, NPR News, Washington.