Wednesday, November 17, 2004

Constitution Not a 'Living' Document: Scalia

Posted on Tue, Nov. 16, 2004
Scalia tells university crowd to `get over' 2000 election
Knight Ridder Newspapers

ANN ARBOR, Mich. - (KRT) - Antonin Scalia, the controversial United States
Supreme Court justice, addressed a packed crowd at the University of
Michigan on Tuesday, taking the unusual step of taking questions from the
audience and drawing some boos - and some applause - during his answers to
those questions.

Scalia, who was at Rackham Auditorium to speak on the philosophy of
constitutional interpretation, was asked by a member of the audience
whether, if he had the chance, he would revisit his decision in the
Gore-Bush 2000 election. Scalia cut off the questioner , saying, "I'm
inclined to say it's been four years and an election. Get over it." That
drew loud boos from the crowd. Scalia voted with the 5-4 majority in 2000
to cease the recount of disputed votes in Florida.

Scalia continued, "The issue is not whether the decision should have been
decided in the Florida or U.S. supreme courts, but that the Constitution
had been violated. ... The only decision was to put an end to it after
three weeks and looking like fools to the rest of the world. It was too
much of a mess."

In his address, Scalia talked about originalism, explaining the concept of
strict interpretation of the Constitution.

"In the last 40 years ... we've become fond of the phrase that we have a
living document. But if something is wrong, then change the law or change
the Constitution, but don't re interpret the Constitution." He said
proponents of the living document concept and flexibility regarding the
Constitution are "dead wrong. "

He also said the Constitution doesn't say anything about such issues as
abortion rights and assisted suicide, and that those who are for or
against such measures should work toward passing laws that support their

Scalia, 68, was first invited to come to the University of Michigan Law
School by former dean Jeff Lehman several years ago and was scheduled to
lecture on campus in late fall of 2002. But the visit was canceled after
the Supreme Court agreed to hear the two University of Michigan admissions
cases, according to law school officials.

Last year, the high court upheld the use of race in the law school
admissions system in a 5-4 decision. Scalia dissented in that case. The
court in a 6-3 decision struck down the use of a system in the
undergraduate case that awarded minorities extra points. Scalia joined the
majority in that case.

Scalia is known for his outspoken and often sarcastic opinions.

In his dissent in the law school case, Scalia said the school's quest for
a "critical mass " of minority students to benefit all students amounted
to racial discrimination.

"If properly considered an educational benefit at all, it is surely not
one that is either uniquely relevant to law school or uniquely teachable
in a formal setting. And therefore if it is appropriate for the University
of Michigan Law School to use racial discrimination for the purpose of
putting together a critical mass that will convey generic lessons in
socialization and good citizenship, surely it is no less appropriate ...
for the civil service system of the State of Michigan to do so ...

"The nonminority individuals who are deprived of a legal education, a
civil service job or any job at all by reason of their skin color will
surely understand. "

Scalia was scheduled to spend two days on campus teaching law school
classes and delivering his public lecture Tuesday on constitutional
interpretation. The law school classes were open only to law students. He
also was scheduled to attend several private dinners.

A former law professor at the University of Virginia, Georgetown
University and the University of Chicago, Scalia is at home in a

In a rare departure from his usual wary relationship with the news media,
Scalia agreed to be photographed at the beginning of his lecture and take
audience questions..

Scalia will receive a $10,000 honorarium from the Helen L. DeRoy
Fellowship, a privately funded program established at the law school in
1980 to enhance legal education.

Chief Justice William Rehnquist was a DeRoy Fellow in 1989 ; former
Justice Potter Stewart also came to campus as a fellow in 1982.