JUSTICE ANTONIN SCALIA AT THE UNIVERSITY OF FRIBOURG (2006.03.08) ================================================================= http://video.google.com/videoplay?docid=6697450419422094906&q=scalia&pl=true [2:12 - Remarks] SCALIA: I did not know I was going to give a speech, but I assume most of you are here to practice your English... [laughter] ...and it doesn't matter what I say. Uh... We are indeed only nine, and, uh... uh, that is all the more remarkable because unlike your Swiss Supreme Court, we never sit in panels; we always sit en banc - all nine justices in every case. On the other hand, we only decide, uh... about eighty cases every year, and, uh... that explains, uh... uh, how we can do it. Uh... much of our time is spent in deciding what cases we will decide, because we get about eight thousand requests for review. These requests come from state supreme courts, each of the fifty states has its own court system. (...) [laughter] ...that is to say, 'The only good constitution is a dead constitution.' The problem with a living constitution is, in a word, is that somebody has to decide how it grows, and when it is that, you know, new rights are... come forth... And that's an enormous responsibility in a democracy to place upon nine lawyers. Or even thirty lawyers. Uhh... why should it be up to me to decide whether there ought to be -- and hence there is, because the Constitution is a living instrument -- uh, a right to suicide? There never has been. For two-hundred years nobody ever called the Bill of Rights, uh... gave that, gave that right to people. Why should it be up to me? What did I learn at Harvard Law School that makes me more qualified to decide that... that profound moral question than, uh... than Joe Sixpack? 'Joe Sixpack' is the common man -- an American name for the common man. Joe Sixpack knows just as much about whether there should be a right to suicide as I do. Uh... Moreover, you don't... you don't need a constitution to change -- if you want change, all you need is a legislature and a ballot box. Things will change as fast as the society wants, and they will not change in the direction that nine lawyers want, the will change in the way that society wants. So, if you want the right to suicide, the Constitution doesn't give you that right, but it doesn't prevent you obtaining that right from the legislature. You want the right to suicide? Pass a law. There's a big debate on the death penalty and, and some of, some of the justices that I have sat with, they - they - they're all... they've left the court now, but three of my colleagues thought that the Constitution prohibited the death penalty. I mean, at the time the Constitution was adopted, the death penalty was the only penalty for a felony -- it was the definition of a felony. It's when you have western movies, because horse stealing was a felony, and if you stole a horse they tried you, they didn't have a penitentiary, a prison, they had a jail house, where you were kept while you were tried. After which, you were either hung, if they found you guilty, or they let you go if they found you innocent. It was a very simple system, and everybody knew that, so how could the death penalty be unconstitutional? Well some people think it's -- the living constitution. The American people don't like the death penalty? They don't need me to tell them, they can simply eliminate it, as -- as many states have done. But you know, it's a moral question for the people, and not, uh... and not uh... a question for lawyers, it seems to me. The trouble... I speak at universities around the United States now, and... and just to make trouble, because most law faculties, uh, they all like the living constitution. I don't know why... Because they like lawyers. 'Let's have lawyers decide everything. Judges are wonderful, they know everything. They should decide whether there's a right to abortion, a right to suicide, a death penalty...' Uhh... So when I do lecture, I... I'll point out that the main problem with the living constitution is this -- or to put it another way, the main virtue of my constitution is this -- which I will not call 'the dead constitution', I will call it 'the enduring constitution' -- the main benefit of the enduring constitution is that I have a criteria. When a case comes to me, I don't do whatever I feel like doing, I have a standard -- the standard is: what would the people at the time the Constitution was enacted have said? So -- the question comes up: is there a right to homosexual conduct? Not a hard question for me. It's absolutely clear that nobody ever thought that when the Bill of Rights was adopted it gave the right to homosexual conduct. Homosexual conduct was criminal for two hundred years, in every state. Easy question. Uhh... The death penalty, the same thing as I've just explained. Now, sometimes I don't like the result that I reach, for example, I was... we had a case raising the question of whether it was constitutional to prohibit the burning of the American flag. The argument made was that the First Amendment which guaranteed freedom of speech, uh... did not allow the prohibiting of that symbolic speech of burning the flag. We decided the case five to four -- I was among the five, who said "you cannot prohibit the burning of the flag." Now I don't like that result, and if it was up to me, if I were king, I would take scruffy, bearded, sandal-wearing idiots who burn the flag, and I would put them in jail! But -- since I am an originalist, I have to look at the First Amendment and say, you know, what did the First Amendment mean? And I cannot avoid the impression that it was a guarantee of freedom of expression; and you have a right to criticize, to condemn; the flag, the Supreme Court, the government, whatever -- that's what the First Amendment's about, OK? Now -- Here's the point I'm getting to. If you don't want to control your judges that way, by telling your judges go back and see what the people who adopted the Constitution thought, if that's not your criteria, that means you are not an originalist -- you are a non-originalist, OK? But that's not a philosophy of interpretation, that just means you don't agree with me. What is your philosophy of interpretation? If you don't use my criteria, what is your criteria? And you know what? There isn't any other. I mean think about it - what can you possible use other than the understood meaning of the text when it was adopted? If you don't use that, if you say 'oh no, it changes, it grows,' OK fine, it changes -- what criteria are you going to tell your judges to use as to when it changes? Are they going to take a public opinion poll? Going to use the philosophy of John Rawls or some other... ? There really is nothing else you can use. You either use the original meaning of the text, the original understanding of the text, or else - or else you tell your judges, 'oh, oh wise judges - you went to Harvard Law School, and Stanford Law School, you must be experts in all of these moral questions for the whole society. You decide it for us.' Five out of nine decide for the whole country whether there can be abortion or there must not be abortion. Whether there can be the death penalty or there cannot be the death penalty. All of these moral questions. Now I have to tell you, this is, uh... this is a problem not just for the United States - I think we, we are probably to blame for it, but now all of the constitutional courts of the world - I call them 'The Mullahs of the West' - somehow have the notion that they have been assigned the responsibility of making moral judgments for the whole society on the basis of, you know, empty phrases, inspiring phrases, such as 'The Right of Privacy'... and I love the right of privacy, it's a wonderful phrase -- but what does it mean? Now you could say well it meant what the society that adopted it meant. You can usually figure out what that was, but oh no, the Court of Human Rights in Luxembourg... er, ah... Strasbourg doesn't do that. They believe in the living convention of human rights, they believe that it's a living instrument. So does the Supreme Court of Canada -- they call... they call their Constitution a 'living treaty', which means that it's up to the judges to say what new rights come into being and what old rights go out of existence. I think that is so contrary to democratic self-government that I cannot understand how any democratic government can tolerate it. I think about it -- no criteria, you just ask these judges 'do you think there should be a right to suicide?' My reaction is "why ask me?" If the people elected me I could vote for a law that permits it or doesn't permit it. People didn't elect me, I'm just a lawyer. Umm.. I think that's all I'm saying, and we can have questions about that or whatever else you want talk about. I used to be a law professor by the way, I used to get paid money for teaching classes like this. [laughter] So if you're bored and falling asleep it's not because I'm not experienced, it's just because I'm a good one. [14:20 - Q & A] Q: It strikes me that if we were to believe you we wouldn't even need lawyers to be on the Supreme Court, because in fact all it takes is to read the Constitution, but I don't want to argue this point, I know about the debate that you just referred to... SCALIA: No but, let's talk about that point first then. That's all lawyers do -- I mean, you think it's easy to read a text, and to understand the background of that text? That's what lawyers do. That's their particular skill: writing texts, reading texts with an understanding of the background, of certain words of art that are used in the text... That's what lawyers do -- that's why you need lawyers. Q: But by doing it that would also enter their thinking, I mean you cannot distinguish reading from interpreting, and then creating... SCALIA: Sure you can! Q: Well no, I think you can't, but I respect your originalist... SCALIA: No -- if I'm wrong, tell me I'm wrong, but look, look at the margins - at the margins, there may be some things that it's difficult to decide, but it is not difficult to decide whether the eighth amendment of the United States Constitution prohibits the death penalty; it clearly doesn't because the death penalty is mentioned elsewhere in Constitution -- it says you have a right to grand jury indictment in all capital cases. It's not a hard question, but if you're constitutional evolutionist it doesn't matter, if you think the death penalty is a bad idea, it's un-constitutional. Uh... I deny that words have no meaning, and that lawyers always read things into them. No, there's some clear answers. [17:00 - 56:18] Q: Very quick question about Guantanamo Bay. On what basis do you justify not, uhh... applying the US Constitution to people at Guantanamo Bay while agreeing to apply thme to US citizens? SCALIA: The United States Constitution gives its protection to American citizens anywhere in the world, and to all persons in the United States. Foreigners in foreign countries have no rights under the American Constitution. Q: Guantanmo Bay doesn't have a Constitution? SCALIA: Nope. Nobody has ever thought otherwise. Nobody has thought that the Germans in Germany have rights under the American Constitution. They just don't. But, but listen, the Guantanamo phenomenon I am, I am astounded at the world reaction to Guantanamo. We are in a war -- we are capturing these people on the battlefield. We never gave a trial in civil courts to people captured in war. We captured a lot of Germans during World War Two and they were brought, not to Guantanamo, but to the soil of the United States -- we didn't give them a trial. To let them prove that actually I wasn't... I wasn't in the German Army. War is war and it has never been the case that when you capture a combatant you have to give him a jury trial in your civil courts. It's a crazy idea to me. I don't know why... Q: That's a politician's answer... SCALIA: Huh!? Q: It's a politician's answer. SCALIA: It's... well tell me why it's wrong. Q: ...you speak, you answer as a politician, then -- SCALIA: I'm answering as... describing the reality... saying in light of that reality I am astounded at the... the, the... I would say hypocritical reaction in Europe, as though the Europeans always gave trials to people they capture on the battlefield. I mean give me a break! [59:04] Q: I like you to comment, maybe in same way on Guantanamo Bay, the case of CIA flights, prison re-transfer of detainees... what you think about this on a institutional and judicial view... SCALIA. The easy answer -- Constitution -- if these are foreigners, the action is occurring abroad, they're not covered by the United States Constitution. Now whether it's a good idea, or a bad idea -- whether it should be done, or should not... That's a different question; that's above my pay grade. [1:00:21] Q: I just would like to say how honestly listening to some of the things you said .... about Guantanamo... I think that the law should have the obligation to... make point of view or persons.... SCALIA: Having heard you, I am scared. A world in which these moral sentiments would be given full expression by unelected judges would scare the devil out of me. I have a Constitution that I live under, it's been adopted by my people, I have statutes that my people have democratically adopted, and my job is to give a fair interpretation to them. You want a world run by an oligarchy... by an oligarchy... that's fine, but it scares me. Q: ...there is the human rights, the Geneva laws, the conventions... SCALIA: What do they mean?? Q: It is... they mean... They mean a lot! SCALIA: They mean almost anything. Q: ...guilty or not guilty. SCALIA: If he was captured by my army on a battlefield, that is where he belongs. Q: (inaudible) SCALIA: I had a son on that battlefield, and they were shooting at my son, and I am not about to give this man, who was captured in a war, a full jury trial. I mean it's crazy. Q: I think that what happened in Guantanamo is a very, very sad... uh... mirror of the United States. SCALIA: I think you're absolutely wrong. Guantanamo is sad, Guantanamo is a problem for only one reason. Not because people who were captured in a war are being held without trial -- that happens all the time, but problem -- please, let me finish -- the problem with Guantanamo, and I don't know how to solve this problem, is that there may be no end to this war. Other wars, you have an army fighting under a leader, and when the leader lays his sword down, or is blown up in a bunker, the war is over, and the two countries make peace, and the captured soldiers are returned home. OK? Who makes peace in this war? That's the problem -- how long are you going to keep these people in Guantanamo? That's the problem that I worry about, and that is uh... a serious moral problem if you like, but it certainly not a problem that -- my goodness -- we're not giving people captured on the battlefield a civil trial. (...) * * * { PEGC - 2006.04.04 - CBG }