Scalia Brings Advice From High Court
Date: March 6, 2002
To UC College Of Law
By: Carey Hoffman
Phone: (513) 556-1825
Archive: General News
Photos by Colleen Kelley
Students from the UC College of Law enjoyed a rare on-campus opportunity to interact with a member of the highest court in the land, when U.S. Supreme Court Justice Antonin Scalia visited Cincinnati on March 4-5.
Scalia was in town to deliver the college's 2002 John H. Burlingame Distinguished Lecture at the Phoenix in downtown Cincinnati. His campus visit the following day included a tour of the College of Law, a luncheon in the Marx Law Library with the faculty and a talk presented to the law student body held in the College-Conservatory of Music's Corbett Auditorium.
Scalia focused on a pet topic -- his role on the court as an originalist when it comes to constitutional interpretation. His consistently pointed and humorous remarks drew a sharp line for the students between his views and the "living Constitution" camp of the last 50 years.
"Judges, lawyers and, worst of all, the American people have come to believe in the living Constitution," Scalia said. The problem with that approach, which favors a broad constitutional interpretation based on current realities and sensibilities, is how it undermines the role of the Constitution in guiding government.
"I'd suggest the framers who adopted the Bill of Rights didn't have such a Pollyannish attitude," Scalia said. While living Constitution proponents would argue that nations need current law to evolve, Scalia counters that the framers recognized "that nations (also) could rot," while citing as an example Germany, the most advanced society of its era, producing a figure like Hitler.
Scalia identified Clarence Thomas as the only other originalist on the current court. He also drew a distinction between originalists and strict constructionists, who interpret the Constitution only on its most literal terms.
He added that the debate over the living Constitution does not break down to a matter of liberals vs. conservatives, Scalia said. Conservatives are just as willing to distort the Constitution for their own purposes. "A pox on both their houses - this making up the Constitution is an equal opportunity fallacy."
Scalia advocates change in the law coming from the ballot box, not judicial benches. "What do I know about the evolving standards of society? Do you think (attending) Harvard Law School allowed me to figure that out? Why has that invitation been issued to the Supreme Court? It makes no sense."
"The main attraction (to the living Constitution) is quite simply that it usually produces a result you like," Scalia added. "It's a comfortable feeling -- which is why I think I'll probably lose this battle."
Scalia's session with the students included time for questions and comments.
Donald Caster, a second-year law student, asked about the importance of the 30-minute oral arguments before the court in the overall decision-making process.
"One thing that has surprised me is how often oral arguments make a difference," Scalia said. "They don't change an argument, but so often you come in (to oral arguments) on knife's edge. The give-and-take can make the difference."
That squared with the recollections of UC Assistant Professor of Law Verna Williams, one of many faculty in attendance. In 1998, Williams successfully argued a Title IX case, Davis v. Monroe County Board of Education, before the Supreme Court. "What he said was on target," Williams said. "Five of the justices asked questions, and those questions came fast and furious. It is a very academic court. They are very inquisitive, and they want their questions answered."
Tina Barrett, a self-described liberal and second-year law student, told Scalia, "This was probably the best lecture I've heard since I've been here, and definitely was the most enjoyable... It reminds me of why I came to law school. If nothing else, you do inspire me and I thoroughly appreciate your being here."
Both the Burlingame lecture and Scalia's student presentation were captured for streaming media viewing on the web. The presentations are expected to be archived and available no later than next week. The student lecture can be linked to at: http://www.law.uc.edu/current/scalia02/ and the Burlingame lecture at: http://www.law.uc.edu/current/burlingame02/.