Scalia on Restoring Constitution: 'I Don't Know That I'm Optimistic'

By Patrick Burke | November 5, 2012 | 5:14pm EST

Supreme Court Justice Antonin Scalia. (AP Photo/Jessica Hill, File)

( – Supreme Court Justice Antonin Scalia said recently that--"especially after last term"--he does not know if he is confident the Constitution can be restored to its original meaning.

He likened his own efforts to do so to the character "Frodo" in the Lord of the Rings, who fights the good fight not certain he will win.

While discussing his new book Reading Law at Stanford University on Oct. 19, the Hoover Institution’s Peter Robinson quoted to Scalia a passage from Scalia's book, Reading Law: "Originalism does not always provide an easy answer, or even a clear one. Originalism is not perfect. But it is more certain than any other criterion, and it is not too late to restore a strong sense of judicial fidelity to texts."

“So here’s the question,” said Robinson. “This book, for that matter your entire career, represents a sustained, determined effort at restoration. Are you optimistic? How’s the project coming?”

Scalia said: “That’s an unfair question, especially after last term. I dissented in the last 6 cases announced last term. So I don’t know. I don’t know that I’m optimistic. The fight is worth fighting, win or lose. You know, [like] Frodo in the Lord of the Rings.

“Look, it," Scalia contiued, "the problem is that the other approach is enormously seductive. Even for the average citizen it’s seductive, to think that the Constitution means what it ought to mean. ‘It’s a living Constitution. Anything I care passionately about, it’s right there in the Constitution.’”

“You know, people used to say when they don’t like something that’s going on, they say: 'There ought to be a law,'” said Scalia.  “There used to be a comic strip that’d--there ought to be a law about people playing boom boxes in the park and stuff like that.”

“People don’t say that anymore,” said Scalia. “They say, ‘It’s unconstitutional,’ if they really feel passionately about it. And it is even more seductive to judges. It’s a wonderful thing to have a constitutional case and you’re always happy with the result because it means exactly what you think it ought to mean.”

The “originalist” perspective says the words of the Constitution should be given the same meaning they originally had in the minds of the Framers.  A competing view, often advocated by contemporary liberals, is that the Constitution is a “living document” and that judge can change its meaning to fit modern mores and sentiments.

The Constitution itself expressly provides an amendment process for people who want to change it.

Scalia was promoting his new book, Reading Law: The Interpretation of Legal Texts, co-authored by Bryan Garner.

MRC Store