October 03, 2008
A crowd that filled Ames courtroom and two overflow rooms heard Associate Justice Antonin Scalia '60 of the U.S. Supreme Court present a lively defense of originalism on October 2, in the inaugural Herbert W. Vaughan Lecture.
Introduced by Dean Elena Kagan ’86 as “our nation’s foremost proponent of textualism and formalism,” Scalia spoke to an audience of more than 650 for nearly an hour on “Methodology of Originalism,” and he also took questions from the audience.
The initial approach to interpretation of the U.S. Constitution, Scalia said, which remained as orthodoxy until the Warren Court, holds that the Constitution is no different from any other legal text such as statutes that do not change meaning from generation to generation.
While the Constitution must be applied to new phenomena unknown at the time of its framing – for example, the First Amendment’s application to radio in the 1920s and today to the Internet – its underlying principles do not mutate over time, he said. Regardless of which medium is involved, libel is unprotected speech. For that reason, Scalia said, a decision such as New York Times v. Sullivan, in which the Warren Court determined that good faith libel of public figures would be “good for democracy,” deviates from the Court’s proper role under the Constitution.
Scalia took to task proponents of a non-originalist approach, whom he says improperly stray into the realm of moral philosophy. “Much as I love Harvard Law School, it didn’t make me a moral philosopher," he said. Not only are lawyers better suited to historical inquiry than to moral philosophy, “that task has become easier over time,” he said, with the proliferation in the past 20 years of legal historians in the academy as well as the increasing number of historically laden amicus briefs submitted to the Court, especially in controversial cases.
In the politically divisive gun control case decided by the high court last spring, District of Columbia v. Heller, “the mass of briefing in that case was nothing short of spectacular, filling over five volumes in the Supreme Court library,” Scalia said. One brief, he noted, appended 200 pages of historical data relating to the right to bear arms as it was understood at the time of the founding fathers.
In Heller, the originalist methodology was able to establish an historical pedigree that led to an incontrovertible result, Scalia said. The petitioners contended that the Second Amendment’s guarantee of the right to bear arms had an exclusively military connotation. “It was necessary and easy enough for the Court’s originalists to show this was not so,” Scalia said, by resorting to such sources contemporaneous to the framing as Blackstone’s and various state constitutions, as well as the English Bill of Rights of 1689, which guaranteed a right to bear arms for personal use.
“The court had before it all the materials needed to determine the meaning of the Second Amendment at the time it was written. With these in hand, what method would be easier or more reliable than the originalist approach taken by the Court?” he said.
Peppering his comments with his renowned sense of humor, sometimes with a sarcastic tone, Scalia often elicited laughter from the audience. “My burden as an originalist is not to show that originalism is perfect but merely to show that it beats the other available alternatives, and that is not difficult,” he said.
Students asked the justice a number of questions, including whether there is historical support for the commitment to originalism, which Scalia affirmed. But it was an exchange with HLS Professor Alan Dershowitz that provided the liveliest moment. Dershowitz referenced a 2003 case on the Fifth Amendment, Chavez v. Martinez, which addressed whether the Constitution prohibits coercion in eliciting self-incriminatory statements. In that case, Scalia joined the majority opinion by Thomas in finding that the coercive questioning by police under the circumstances of the case was not a constitutional violation.
In the opinion, according to Dershowitz, there was “not a single word about history” because such inquiry would have led to a different result. “There is a long, long history on that, debates on that during the framing,” Dershowitz said, yet “nobody in the conservative majority looked at it.” Dershowitz said he could cite 20 to 30 cases in which “you eschew history.”
Said Scalia: “I don’t remember the details of that opinion, but what did Sarah Palin say? ‘I’ll get back to you on it’”— eliciting another loud round of laughter from the audience.
Originalists don’t always agree with each other, Scalia noted, citing the high court’s 1995 decision in McIntyre v. Ohio Elections Commission, which held it unconstitutional to require that election campaign literature include identification of the group that produced it. “It was quite difficult to determine what the people who ratified the First Amendment would have thought of such a complaint,” conceded Scalia, who was in the dissent. In writing the majority decision, Justice Clarence Thomas, whom Scalia described as “another originalist, and perhaps the only other thoroughgoing originalist” on the high court, noted that the Federalist Papers were published under the name Publius and that such psuedoanonymous political speech was common at the time.
Thomas concluded that the framers must have valued this anonymity, “a not unreasonable conclusion, as was mine,” said Scalia. “So originalists can have fun and sometimes differ.”
But McIntyre, Scalia continued, represents an exception. “In most cases, the originalist answer is entirely clear,” he said. “Did any provision in the Constitution guarantee a right to abortion? No one thought so for almost two centuries.” The same is true for the argument for a right to homosexual sodomy and to assisted suicide, he said, while the death penalty clearly was accepted at the time of the framing.
“But all of these questions pose enormous difficulty for non-originalists, who must agonize over what the modern Constitution ought to mean with each of these subjects, and then agonize again five or 10 years later because times change.” Sixteen years after deciding that it was not a violation of the Eighth Amendment to execute someone who committed a crime at the age of 16, the Court changed its mind, he noted. “The current time line is 18 – but again, stay tuned!”
As to the criticism that ideology drives the Supreme Court, Scalia disagreed, saying, “Originalism does not invite the judge to make law what he thinks it should be. The historical evidence is sometimes indeterminate or subject to competing interpretation, but it’s not infinitely malleable.” He added, “The honest originalist will sometimes, indeed often, reach a substantive result he does not personally favor,” while the same cannot be said of Constitutional consequentialists.
In concluding his remarks, Scalia said, “If ideological judging is the malady, the avowed application of such personal preferences will surely hasten the patient’s demise, and the use of history is far closer to being the cure than it is to being the disease.”
Shortly before the lecture, Scalia, Kagan and others convened outside the Caspersen Room in the HLS Library, where a formal portrait of the justice by artist Nelson Shanks has been placed, on loan from the U.S. Supreme Court until he retires, at which point it will be hung in the Court.
In thanking Shanks for the portrait, Scalia said, “I expect all artists to be Jacobins but Nelson and I got along splendidly. I won’t talk about politics but when Stravinsky came on the radio he’d change it back to Mozart.” Shanks, in turn, praised the justice as a “marvelous, benevolent and humorous person.”
Yesterday’s lecture was made possible through the generosity of Herbert Vaughan SB ’41 LLB ’48, who attended yesterday’s talk. Last year, he created the “Herbert W. Vaughan Lecture and Academic Activities on America’s Founding Principles Fund” to promote and advance understanding of the founding principles and core doctrines of American constitutionalism.
The Vaughan Lecture will be given every other academic year beginning with this year's inaugural lecture. In years when the Vaughan Lecture is not given, the Fund will support academic activities sponsored or co-sponsored by Harvard's Federalist Society Student Chapter for the same topics addressed in the Lectures. These may, among others, include federalism, executive leadership, judicial independence and power, religion in American public life, and other matters related to the Constitution of the United States and its implementation in American life.
Herbert Vaughan is a retired partner at WilmerHale in Boston, who he spent 47 years in practice, including a period as chairman of the firm’s Real Estate Department and Executive Committee. He was also a co-managing partner of the firm. When Vaughan made the gift, he said the following:
“I have endowed this Lecture at Harvard Law School to promote and advance understanding of the founding principles and core doctrines of American constitutionalism. What Alexander Hamilton said to the Americans of his day remains true for Americans of every generation:
‘It seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force.’
Vaughan added: “In my judgment, the Constitution of the United States is the greatest practical achievement of political science. It is a testament to the extraordinary gifts of creativity, prudence, and high mindedness possessed by the founders of our Nation. May you be guided and inspired by their genius as you meet the challenges of the present day.”
-- Elaine McArdle