Less than a week after the U.S. Supreme Court announced it would take up the same-sex marriage issue, Justice Antonin Scalia was asked to defend his legal writings on homosexuality after his speech at Princeton University yesterday.
Several hundred people packed Richardson Auditorium to hear the Trenton native deliver the school’s annual Herbert W. Vaughan Lecture on America’s Founding Principles. Scalia spoke about his new book, “Reading Law: The Interpretation of Legal Texts.”
During the question and answer session, Princeton University student Duncan Hosie drew applause from the audience when he challenged Scalia for comparing laws banning sodomy with laws barring bestiality and murder. Scalia was unapologetic about his position or tactics.
“I don’t think it’s necessary, but I think it’s effective,” Scalia said. “It’s a form of argument that I thought you would have known, which is called ‘reduction to the absurd’.”
“If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against other things?” Scalia said, adding dryly, “I’m surprised you aren’t persuaded.”
In his 45-minute talk, Scalia defended his judicial philosophy. He believes seeking the original meaning of the text is the best way to interpret the Constitution. Scalia, who spoke in a casual tone and cracked several jokes during his speech, criticized those who view the U.S. Constitution as a living document that changes with the times.
“I have classes of kids who come to the court, and they recite very proudly what they’ve been taught, that the Constitution is a living document,” he said. “It isn’t a living document. It’s, dead, dead, dead… I don’t say that them. I call it the enduring Constitution. That’s what I tell them.”
Scalia said interpreting laws requires adherence to the words used and to their meanings at the time they were written.
“When we read Shakespeare, we use a glossary because we want to know what it meant when it was written. We don’t give those words their current meaning.,” he said. “So also with a statute. Our statutes don’t change meaning from age to age to comport with whatever the zeitgeist thinks is appropriate.”
He contrasted his philosophy of originalism with the notion of a “living Constitution” that changes over time as society becomes more mature. He said that people who see the Constitution as changing often argue they are taking the more flexible approach. But their approach is restrictive, he said, and their true goal is to set policy permanently.
“If there’s anything you absolutely hate, why, it must be unconstitutional,” he said. “If there’s anything you absolutely have to have, it must be required by the Constitution. That’s where we are. It is utterly mindless.”
Scalia said it should be left up to states to approve legislation on issues like abortion, homosexuality and the death penalty.
“My Constitution is a very flexible one,” he said. “There’s nothing in there about abortion. It’s up to the citizens. The same with the death penalty,” he said. “Why would you think these nine unelected lawyers living in a marble palace have their thumb on the pulse of the American people so that they know what the evolving standards of decency are? I don’t know what they are. I’m afraid to ask.”
For originalists, Scalia said, the notion that the constitution changed from age to age was ridiculous.
He noted that looking at the text and determining the original intent of the law can lead to some outcomes that liberals support, and other outcomes that conservatives support. “It goes both ways,” he said.