BOZEMAN – The Supreme Court should abandon the notion of a “living constitution,” an approach that has resulted in the nation’s charter being rewritten time and again by unelected judges who are unqualified to make decisions on morality, Justice Antonin Scalia said Wednesday.
Instead, the court should go back to its practice before the last half of the 20th century, when the constitution and the meaning of laws were considered static and could only be changed by an amendment of the people, he said.
“Nothing that I learned in my courses at Harvard law school, none of the experience I acquired practicing law qualifies me to decide whether there ought to be, and hence is, a fundamental right to abortion or assisted suicide,” Scalia said.
The modern court’s “living constitution” doctrine has resulted in the Supreme Court acting as moral arbiters for the nation, he said. Examples of such decisions include barring states from having military colleges for men only and rejecting for the time being a constitutional right to assisted suicide.
Scalia, 74, spoke before a crowd packed into the 220-seat auditorium at Montana State University’s Museum of the Rockies.
As long as Supreme Court justices are deciding the nation’s morals, be prepared for each new appointment to be a political event, with each nominee’s appointment being judged on the basis of his or her views, he said. He guessed that if he were up for nomination today, he would not get 60 votes to be confirmed.
“I am not happy about the intrusion of politics into the judicial appointments process,” he said. But, “as long as (the constitution) is subject to revision, you should get used to controversial and absurd political theater when a person is nominated.”
He followed his speech with a candid question-and-answer session, fielding questions that ranged to which dictionary he uses to define words in the constitution — an 1848 Noah Webster dictionary he keeps on his desk — to how he can defend the court’s recent decision to allow corporations the same rights as individuals in elections.
“Corporations are groups of individuals,” Scalia responded. “This wasn’t a conservative versus liberal thing. This was an original reading of the constitution thing.”
One question he would not answer, though, was his opinion on Arizona’s controversial immigration law, parts of which a judge earlier Wednesday blocked from taking effect.
“You want to get me recused from the case?” he asked his questioner.
Scalia was appointed to the Supreme Court by President Ronald Reagan in 1986. His opinions have placed him among the most conservative justices on the bench.
Outside the museum, a couple of protesters stood in the rain, condemning the Supreme Court’s decision allowing corporations to participate in election campaigns. One of the protesters, Belgrade resident Erik Kreis, said corporations have no loyalty to any country.
“I think he’s representative of a prevailing culture that needs to change,” Kreis said. “We want back our country.”
Inside the auditorium, Scalia occasionally let his humor show, telling the audience he was delighted to be in Montana because he loves to fish.
But at times, his temper flared. He interrupted his speech twice, once to ask that a crying baby be removed from the audience and again to halt the clicking cameras of news photographers in the front row.
And when he was asked whether it was a violation of decorum to have the justices dress down at the State of the Union address, he spoke candidly that the annual presidential speech has simply become political theater consisting of a series of applause lines.
“I haven’t gone to that silly spectacle for the last 15 years, I think,” he said. “I don’t know why the Supreme Court should lend dignity to that silly occasion.”
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