Tuesday, July 3, 2018
On the 4th of July, Justice Scalia Talks about the Constitution, and Senator Cruz Should Do His Duty and Be Available for the Supreme Court
THE FOURTH OF JULY, JUSTICE SCALIA, AND A MESSAGE FOR SENATOR TED CRUZ. The Fourth of July, when Americans celebrate their Declaration of Independence, may seem a strange time to discuss the Constitution, but not if we consider the two documents as the late and lamented Justice Antonin Scalia did. • • • WITHOUT THE CONSTITUTION, THE BILL OF RIGHTS IS IN DANGER. Justice Scalia once said : "Every tin horn dictator in the world today, every president for life, has a Bill of Rights. That’s not what makes us free; if it did, you would rather live in Zimbabwe. But you wouldn’t want to live in most countries in the world that have a Bill of Rights. What has made us free is our Constitution. Think of the word ‘constitution;’ it means structure.” • In a speech titled "Judicial Adherence to the Text of Our Basic Law : A theory of Constitutional Interpretation," given at the Catholic University of America on October 18, 1996, Justice Scalia said this about "interpreting" the Constitution : "At the end of this long process, this great evolution from stuffy old originalism to an evolutionary constitution, we arrive at the point where the meaning of the Constitution, the most important part of the Constitution, the Bill of Rights, is decided upon by the very body that the Bill of Rights is supposed to protect you as an individual against -- namely, the majority. That seems to me the inevitable demonstration that the only sensible way to construe a constitution is the way you construe statutes. What did its words mean when they were adopted? I think we depart from the traditional view of the Constitution at our own risk." In his speech, Justice Scalia said : "The theory of originalism treats a constitution like a statute, giving the constitution the meaning that its words were understood to bear at the time they were promulgated." But, said Scalia, it has nothing to do wit "intent" : "You will never hear me refer to original intent, because I am first of all a textualist, and secondly an originalist. If you are a textualist, you don't care about the intent, and I don't care if the Framers of the US Constitution had some secret meaning in mind when they adopted its words. I take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words. I do the same with statutes, by the way, which is why I don't use legislative history. The words are the law. I think that's what is meant by a government of laws, not of men. We are bound not by the intent of our legislators, but by the laws which they enacted, laws which are set forth in words, of course." • Justice Scalia noted that the originalist approach ot the Cosntitution was predominant until about 40 years ago : "Everyone said that the Constitution was that anchor, that rock, that unchanging institution that forms the American polity. Immutability was regarded as its characteristic. What the Constitution meant when it was adopted is what it means today, and its meaning doesn't change just because we think that meaning is no longer adequate to our times. If the Constitution's meaning is inadequate, we can amend the document. That's why there's an amendment provision in the Constitution." And, added Scalia, it is not just lawyers and judges who decide what the Constitution meant : "It's ultimately the American people who are concerned. What do the people think this document is, and what do they think it means?" • Justice Scalia used a great example to prove his point -- the 1920 adoption of the Nineteenth Amendment, which guaranteed women the right to vote. Here is Scalia's explanation : "As you know, there was a national campaign of 'suffragettes' to get this constitutional amendment adopted, a very big deal to get a constitutional amendment adopted. Why? Why did they go through all that trouble? If people then thought the way people think now, there would have been no need to add the Nineteenth Amendment to the Constitution. In 1920, there was an equal protection clause, right there in the Constitution, in the Fourteenth Amendment. As an abstract matter, what in the world could be a greater denial of equal protection of the laws in a representative democracy than denial of the electoral franchise -- the right to vote -- to women or to any other group of adult citizens with sound minds. The suffragettes could just come to the court and say, 'This is a denial of equal protection,' and petition the US Supreme Court to invalidate all state laws denying the franchise to women, to declare such laws to be violations of the Federal Constitution and therefore unconstitutional and null and void. Why didn't the suffragetters take this course of action? Because they didn't think that way. Equal protection could mean that everybody has to have the vote. It could mean that. It could mean a lot of things in the abstract. It could have meant that women must be sent into military combat, for example. It could have meant that we have to have unisex toilets in public buildings. But does it mean those things? Of course, it doesn't mean those things. It could have meant all those things. But, it just never did. That was not its understood meaning. And since that was not its meaning in 1871, it's not its meaning today. The meaning doesn't change." • Then, Scalia expands to explain that : "There have been a lot of reasons why you could deny the vote, not only on the basis of sex, but also on the basis of property ownership. On the basis of literacy. Denying the electoral suffrage on any or all of these bases was never regarded as a denial of equal protection. And since it never was, it isn't. That's how the people in the late nineteenth and early twentieth centuries thought. An amendment to the US Constitution had to be drafted, proposed, and ratified in order to give women the right to vote. Now you know that wouldn't happen today. You know that the issue today would be resolved in the US Supreme Court. People would come to the court and would say, 'The equal protection clause should mean this, and therefore it does mean that. Never mind what it originally meant.' " • "People who adopt a bill of rights," says Scalia, "know that societies not only evolve, they also rot. And they are worried that future generations may not have the integrity and wisdom that they do, so they say, 'Some things we are going to freeze in, and they will not change.' But no, the contemporary generation does not see it that way, and will not have it that way. With all this development, away from originalism, that has occurred within the past forty years, we believe, the Supreme Court believes, and, worst of all, the American people believe, that...the whole Bill of Rights, the whole Constitution, 'reflects the evolving standards of decency of a maturing society.' Or, to put it more simply, the Constitution means what it ought to mean. Not what it did mean, but what it ought to mean. And so, what comes with all of this sophistry? All sorts of rights that clearly did not exist at the time of the adoption of the Constitution and the Bill of Rights exist today. It's plain absolutely plain, that the right to an abortion was not thought to exist in 1791 or at the time that the post-Civil War amendments were adopted, since there were laws against abortions in all the states. It's absolutely plain that there was no right to die, since there were laws against suicide. And you can go right down the list." • Justice Scalia warns us : "This is not, I caution you, a Liberal versus Conservative issue. Conservatives are fully as prepared as Liberals to create new rights under this evolutionist theory of the Constitution. During its 1995-1996 term, the Supreme Court created a big brand new right that the Liberals like, when it held in Rohmer vs. Evans (1996) that a state could not, by state constitutional amendment, prohibit its local sub-units from providing special treatment on the basis of homosexuality. Liberals like that one. But during the same term, in fact within weeks of it, I believe, the Court also said that there is a federal constitutional right, which my copy of the US Constitution doesn't reflect, not to have an excessive jury verdict. We struck down excessive punitive damages. Now there have been excessive jury verdicts for over 200 years. Nobody ever thought that it was a federal matter, that it violated the Federal Constitution. Punitive damages are no different in that respect from excessive compensatory damages. So it's not Liberal/Conservative. It's the modernist view versus the traditional view of the Constitution. It should not be thought, although it is often argued, that this new way of looking at the Constitution is desirable because it promotes needed flexibility. That's the argument you sometimes hear....The argument is as follows : 'The Constitution is meant for a living society. If it could not grow and evolve with the society, it would become brittle and snap. You have to provide the flexibility.' This is a very plausible argument. It sounds wonderful, until you start to think, 'Now, wait a minute. What is the real motive of these people who want to chuck away the old, original constitution? Is it really flexibility that they're looking for?'....Existing law authorized capital punishment. If you wanted to abolish it, you needed to get a change in the law. Regarding capital punishment, I have sat with three colleagues on the Supreme Court who think that capital punishment is unconstitutional, even though the Constitution mentions capital punishment. The due process clause -- a clause you're all familiar with -- provides : 'No person shall be deprived of life, liberty or property without due process of law...' What do you think the drafters of the clause were talking about? They were talking about the death penalty. And elsewhere in the Constitution, it says you shall not be sentenced for a capital crime without a grand jury indictment. What do think the drafters were talking about? They were talking about the death penalty, clearly approved in the text of the Constitution. For the constitutional evolutionist, or modernist, it doesn't matter what the text of the Constitution says. For the modernist, everyday is a new day. And so, the death penalty, which might have been constitutional in the past, may very well be unconstitutional today. Now does that produce flexibility? Under the original disposition, if you wanted to have the death penalty, you enacted a law authorizing it. If you didn't want it, you repealed the law authorizing it. That's flexibility." • So, Justice Scalia rejects the modernist view : "These people who go around talking about the need for growing and bending are uttering nonsense. What these people want is to impose a view of things on the whole so- ciety from coast to coast, and it is most quickly and most effectively done through the Constitution. And the easiest and quickest way to get something into the Constitution is to get it done via judicial interpretation. Rather than go the slow, difficult, and troublesome route of getting a constitutional amendment drafted, formally proposed and ratified, persuade the highest court in the land to interpret the Constitution so broadly and loosely as to enable it read the desired policy into the Constitution.....What happens if the Constitution is, rather, a sort of an empty bottle that contains the aspirations of the society, just all sorts of wonderful aspirations, the precise content of which is quite indeterminate? Today, the Eighth Amendment ban against 'cruel and unusual punishment' may mean the death penalty is ok, but tomorrow it won't mean that. 'Due process of law,' whatever that means will vary over time, the due process clauses in the Fifth and Fourteenth Amendments meaning one thing today and something else tomorrow. We're so in love with these abstractions, and, in the future, the Supreme Court shall decree for us what these abstractions mean....I'm not very good at determinating what the aspirations of the American people are. I am out of touch with the American people....If you want somebody who's in touch with what are the evolving standards of decency that reflect a maturing society, ask the Congress to make the relevant decisions. And of course that's the way it's done in the United Kingdom. The Parliament says what the English Constitution consists of." • Scalia asks a hard question of the constitutional evolutionists : "And what you have to ask the non-originalist law professor or whoever else is a non-originalist, 'what do you propose?' What does a judge consult, if not the original understanding of the text? What binds the biases of a judge? What prevents the judge from simply implementing his own prejudices? What is the standard? And the fact is, I have never heard of a non-textual standard that had a snowball's chance in hell of ever being adopted by more than two people. If not the original understanding of the text of the Constitution, what are you going to use as a standard? The philosophy of Plato? Natural law? The philosophy of John Raule? Public opinion polls? What do you want to use? If you don't take the words of the Constitution and what they were originally understood to mean, what is the standard? The answer is, there isn't any standard....So, the personal opinions and prejudices of the judges become the standard. What else are you going to use?" • And, Justics Scalia states that change is easy : "In the long run, non- originalism triumphant and rampant is the death knell of the Constitution. As I suggested earlier, the whole purpose of the Constitution is to prevent a future society from doing whatsoever it wants to do. To change, to evolve, you don't need a constitution. All you need is a legislature, as well as a ballot box. Things will change as fast as you want. You want to create new rights and/or destroy old ones? A legislature and the electoral franchise are all that you need. The only reason you need a constitution is because there are some things which you don't want a majority to be able to change. That's my most important function as a judge in the American legal system. I have to tell the majority to take a hike. I tell them : 'I don't care what you want. The Bill of Rights says you cannot do it.' Now, if there is no fixed absolute, if the Constitution evolves to mean what it ought to mean today, what makes you think the majority is going to leave it to judges to decide what the Constitution ought to mean? The people comprising the popular or legislative majority will do that only if they think the decisions of the courts will be supportive of their particular interests, values, and opinions. If there are no fixed legal standards, if the justices on the Supreme Court are supposed to tell us what are the evolving stand- ards of decency that reflect a maturing society, a majority of the people and its political leadership will look for judges who agree with the majority as to what the Constitution means. And so we will have the absolutely crazy system in which we conduct a mini-plebiscite on the meaning of the Constitution every time we select a person to fill a vacancy on the Supreme Court. Isn't that what's already happening? Does it make any sense?" • • • A MESSAGE FOR SENATOR TED CRUZ. Justice Scalia also once said : "The genius of the American constitutional system is the dispersal of power. Once power is centralized in one person, or one part [of government], a Bill of Rights is just words on paper.” Scalia said the most profound and significant departure from our nation’s constitutional structure and the principle of federalism protecting the states from federal power came in 1913, when the 17th Amendment was ratified, providing for the direct, popular election of US Senators. Before, state governments appointed US Senators : “What a difference that makes. When you have a bill that says states will not receive federal highway funds unless they raise the drinking age to 21, that bill would not pass. The states that had lower drinking ages would tell their Senators, ‘You vote for that and you are out of there.’ That has all changed. You now have Senators who have no connection to the state government, never been in state government and some of them have never been to the state.” Although many view this as a positive, democratic change, Scalia contended it removed a key plank of the constitutional structure the framers put in place to protect federalism and state interests, loosening the responsiveness and accountablity of Senators that, prior to the 17th amendment, had to answer to the states. Scalia says the trend toward using constitutions as lawmaking documents has increased in recent years as special interests have learned to insert 'pet projects' into constitutions : “A constitution is about setting structure; it is not about writing the preferences of special interest groups.” In fact, Justice Scalia says the less done to the Constitution, the better : “A constitutional convention is a horrible idea. This is not a good century to write a constitution.” • And that brings us to Senator Ted Cruz. The retirement of Justice Anthony Kennedy provides another opportunity to appoint a justice like the late Antonin Scalia, an originalist who believed that the words of the Constitution should be interpreted as written by the Founders in the context of the time in which they were written. Because of the number of Supreme Court seats likely to be vacated during President Trump's term of office, the most importance consequence of President Trump’s election will the transformation of the Supreme Court and lower courts into conservative and constitutional bastions of freedom. This is what makes Trump's choices so important. President Trump has proven more conservative in thought, word, and deed than anyone could have imagined. Nominating Neil Gorsuch was proof of Trump's understanding of the importance of recreating an originalist Supreme Court majority. Ted Cruz’s name was not on the current list to replace Justice Kennedy becuase Cruz thinks he is more importnat in the Senate. Perhaps, in the short-term view of things. But, how much more important would be Senator Cruz's contribution to the safeguarding of the Republic as a Supreme Court Justice. Incalculably more importnat. • Trump warned during the campaign that the Second Amendment was under attack, and there was no better defender of the Second Amendment than Ted Cruz. He would be a worthy replacement for the late Justice Scalia, with whom Cruz helped save the Second Amendment in the momentous Heller decision. On Scalia’s passing, Cruz stated : “As liberals and conservatives alike would agree, through his powerful and persuasive opinions, Justice Scalia fundamentally changed how courts interpret the Constitution and statutes, returning the focus to the original meaning of the text after decades of judicial activism. And he authored some of the most important decisions ever, including District of Columbia v. Heller, which recognized our fundamental right under the Second Amendment to keep and bear arms. He was an unrelenting defender of religious liberty, free speech, federalism, the constitutional separation of powers, and private property rights. All liberty-loving Americans should be in mourning." • What few people know -- and the media won’t repeat -- is that Ted Cruz was a prime mover in getting Heller, in which Scalia wrote the majority opinion, before the Court and decided in favor of gun rights, ruling that the right to keep and bear arms was an individual right and that the word “militia,” as the Founders intended, meant the “whole people” of the United States. If Heller had gone the other way, our gun rights would have been thrown on the ash heap of history. Cruz told CNN : "I represented 31 states in the Heller case, which upheld the individual right to keep and bear arms. You know what Barack Obama's position is? That there is no individual right to keep and bear arms whatsoever under the Constitution....Hillary Clinton, for example, has said she will put Supreme Court justices on the court who will overturn Heller. And if Heller is overturned....there were four justices who said that there is no individual right to keep and bear arms whatsoever, that it is only a collective right in the militia, which is fancy lawyer talk for a nonexistent right....If Hillary Clinton gets one more Supreme Court justice, what it would mean is, the Supreme Court would say you and I and every individual American have no constitutional right under the Second Amendment at all, and either the federal government or a state government could make it a crime to possess a firearm." • There are those who suggest Cruz would turn down a SCOTUS offer made directly bu Preszident Trump. Cruz, the argument goes, may not want to be just 1 of 9, but right now he is just 1 of 100. Would he pass up a chance to safeguard the Constitution or a generation or more in favor of having his bills die in committee? Would the United States and the Constitution be better off with a Justice Cruz? Yes. We need to deliver the message to both the President and to Senator Cruz -- that there are times when 'wants' must give way to 'duties.' The safest, best choice to replace Justice Kennedy is Senator Ted Cruz. • Time is short. Tweet or email both of them today. And then celebrate America's Independence Day with a happy heart.