• Scalia talks up 'originalism' in UVM speech
     | October 09,2004

    BURLINGTON U.S. Supreme Court Associate Justice Antonin Scalia brought his legal doctrine of constitutional originalism to the University of Vermont on Friday.

    Speaking before a full house of about 900 in UVM's Ira Allen Chapel, as well as an additional 300 in an overflow area, the man widely viewed as the court's leading conservative intellectual said judges shouldn't read rights into the Constitution that aren't spelled out in the document itself.

    Abortion, gay rights and the "right to die" are best left to the legislative and executive branches, he said. "You want a right to abortion? ... Pass a law."

    "Every time the Supreme Court defines another right in the Constitution it reduces the scope of democratic debate," said Scalia, a former law professor and government lawyer who was appointed to the Supreme Court by President Reagan in 1986.

    Scalia derided those who think of the country's founding charter as "the living Constitution." "It's not a living organism, it's a legal document," he said.

    He argued that during the past half century, the Constitution has been regarded too flexibly. He took aim at those who argue that the court's rulings should take account of the maturation of American society."Every day in every way we're getting better and better," he said mockingly. The stance of his opponents seems to be "societies only mature, they never rot." He called that "a Pollyannish attitude."

    He said those who believe that there is "an evolving standard of decency" in the society at large may be unwise to ask the nine lawyers on the Supreme Court to decide what that standard is.

    "They seem to know what the evolving standards of decency are out there," he said of some of the court's more liberal justices. "I'm afraid to ask," he added to laughter from his audience.

    Scalia dismissed the notion that it's best to appoint moderate judges to the nation's courts. He said the job for a judge is to "look at the text (of the law) in front of you." He defined a moderate interpretation of the law as one "half-way between what it really means and what you would like it to mean."

    Scalia defended the court's ruling in the Bush versus Gore decision that settled the 2000 presidential race. He said it met the test of constitutional originalism by relying on the Constitution's clause saying that citizens will have equal protection before the laws.

    In the Florida recount halted by the court, "some people had their votes counted and others did not," he said.

    In response to to a question from the audience, Scalia acknowledged the doctrine of originalism can't solve all legal problems.

    "It's not always easy to figure out what the provision meant when it was adopted," he said, adding of originalism, "I don't say it's perfect. I just say it's better than anything else."

    He urged that for a better understanding of the Constitution, Americans should read "The Federalist Papers," a collection of essays published at the nation's founding by James Madison, Alexander Hamilton and John Jay.

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