Original justice

He strikes you as a happy man. Good natured. A jolly soul beneath his black robe and the deep thinking he exerts on the biggest, most profound legal issues of our time.

Asked Monday night minutes before his speech if he would stand for a quick photo with a Sarasotan whose birthday was a day from his, Supreme Court Justice Antonin Scalia, said, “Let’s do it,” as if he was getting away with a little mishchief. He stood next to Joel Schleicher and smiled for the discreet iPhone snapshots.

There were no pretenses of royalty or of a giant of jurisprudence perched above the bourgeoisie.

Justice Scalia laughed and smiled and laughed Monday evening at a pre-speech photo session at the Hyatt Regency. When Mark Pritchett, senior vice president of the Gulf Coast Community Foundation,  had his turn with the justice, Pritchett joked: “I want to be to the right of you.” 

Scalia, playing on his reputation and not missing a beat, responded playfully to Pritchett: “Are you Attila the Hun?”

Before speaking, he chatted with table mates and sipped and savored a glass of beer. He was funny throughout his speech, especially at the start. 

His opening line: “I do not like after-dinner speeches, to tell you the truth.”

He illustrated with a story. The story of a hanging alleged to have occurred in the Midwest in the latter 19th century in the district of a Congressman Smith.

As the convicted criminal stood at the gallows, the noose around his neck, Scalia said, the town’s mayor asked the man if he wanted to make any final statements.

The criminal declined. “I’m not in the mood,” the criminal said.

“Go ahead,” Scalia said quoting the town’s mayor. “What you say will not be censored.”

The criminal declined again.

When Congressman Smith witnessed this, he spoke up: “Mr. Mayor,” Scalia said, mimicking the congressman, “will the gentleman yield his time to Congressman Smith?”

“Yes,” said the criminal. “That would be OK, but hang me first.”

“That’s my attitude toward after-dinner speakers,” he said.

Justice Scalia was no Congressman Smith. Nor would anyone have hanged himself before the justice spoke. After all, this was a justice of the U.S. Supreme Court, the first ever to be a featured speaker as part of the Ringling College Library Association’s Town Hall Lecture Series. And it was, of all justices, Justice Antonin Scalia, the longest serving justice on the High Court and the one who is revered as the most ardent defender of the “original” Constitution.

He had the audience the moment he took the stage.

It was a long day. Earlier he had gone fishing for the second day on his visit to Sarasota. His face looked slightly wind and sun burned. He said the second day he caught more fish than the first. Asked how he liked Sarasota, he said this was his first time here. “It’s a beautiful city,” he said, “but the traffic …” (Even he noticed it.)

Scalia spoke to a Town Hall Series audience of nearly 620 patrons. He said he didn’t want to bore them talking about Supreme Court procedures. Instead, he wanted to focus on “what makes the justices vote the way they do.” 

The audience nestled in. This should be good.

“It has nothing to do with politics,” he said. “It’s judicial philosophy that divides us.”

It’s the “Originalist” that he is versus those who believe the U.S. Constitution is a “living Constitution.” 

Scalia’s Originalism is rooted in giving every word in the Constitution “the meaning it had when the people adopted it.”

“People look at that” — Originalism — “like it’s an affliction,” he said. “But honestly, I don’t understand how anyone can be anything different.

“I’m offended by their calling theirs living and mine dead,” he said.

“Living Constitutionalists,” on the other hand, subscribe to the belief that while the meaning of the Constitution does not change, judges have the power to apply its principles to meet the demands of the day.

For Scalia, the United States is a democratic republic whose Constitution was specifically intended to limit the role and actions of government. As he sees it, virtually all decisions and laws are left to the people to decide at the ballot box by the democratic majority. Not by the courts.

As an example, he cited how four former Supreme Court justices believed the death penalty was unconstitutional. But “to say the American people ever voted to prevent the death penalty, I don’t know how anyone could ever think that.”

 “My Constitution provides for a very legal system,” he said — the Bill of Rights limiting government, separation of powers and the ballot box. 

For instance, Scalia noted, “If you want the death penalty, then persuade your colleagues to adopt it (at the ballot box). Things will change as rapidly as you want as long as you have a ballot box.”

In contrast, supporters of the “living Constitution,” Scalia said, “think if something, anything is wrong, it’s unconstitutional.” And yet they also believe a “living Constitution” provides for flexibility. 

But in truth, Scalia noted, the Constitution brings rigidity. “Everyone shall now and forever obey this,” he said, the paradox so apparent. The “living Constitutionalists” say the Constitution allows for interpretation and flexibility, but when the High Court rules, it’s absolute, one size fits all. Rigidity.

“What’s the use of having federalism if you make everyone do things the same way?” Scalia asked. “The reason for a federal system is to have happy people.” The states should be different, with their citizens deciding what they want … “What has preserved our liberties is a structure that has prevented the centralization of power,” he said.

“The issue is: Who decides? Who decides?” Scalia said.

“Another fallacy of the ‘living Constitution:’ Do you think the ‘living Constitution’ is going to lead to greater freedom?” he asked. His implication was obvious. Later he said, “Every time you allow the Supreme Court to change the Constitution, you are ruining democracy.”

“It’s such a seductive philosophy,” Scalia said of the “living Constitution:” “Whatever I love is in the Constitution. Whatever I hate is not in the Constitution.”

To wit: There is nothing in the Constitution about abortion, Scalia said, and yet its defenders and “living Constitutionalists” believe otherwise. In contrast, for 200 years, he said, American society prohibited suicide and homosexual sodomy — “Nobody thought that was unconstitutional,” he said. But now it is.

“It’s utterly crazy. It really is,” Scalia said. “Those who have a fondness for the ‘living Constitution,’ I hope you will reconsider.”