N.b., this text is reproduced from the Internet Archive's January 1997 image of a page posted by Court TV in 1996.

"A Theory of Constitution Interpretation"

Remarks by Justice Antonin Scalia at The Catholic University of America Washington, D.C. Oct. 18, 1996


[What is the object of the Court?] This is a matter of interest to not only judges and lawyers, but any intelligent American citizen, philosopher or not. What do you think your judges are doing when they interpret the Constitution? It's sad to tell you after 200 years, there is not agreement on this rather fundamental question: What is the object of the enterprise?

I belong to a school, a small but hardy school, called "textualists" or "originalists." That used to be "constitutional orthodoxy" in the United States. The theory of originalism treats a constitution like a statute, and gives it the meaning that its words were understood to bear at the time they were promulgated. You will sometimes hear it described as the theory of original intent. You will never hear me refer to original intent, because as I say I am first of all a textualist, and secondly an originalist. If you are a textualist, you don't care about the intent, and I don't care if the framers of the Constitution had some secret meaning in mind when they adopted its words. I take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words.

I do the same with statutes, by the way, which is why I don't use legislative history. The words are the law. I think that's what is meant by a government of laws, not of men. We are bound not by the intent of our legislators, but by the laws which they enacted, which are set forth in words, of course. As I say, until recently this was constitutional orthodoxy. Everyone at least said that: That the Constitution was that anchor, that rock, that unchanging institution that forms the American polity. Immutability was regarded as its characteristic. What it meant when it was adopted it means today, and its meaning doesn't change just because we think that meaning is no longer adequate to our times. If it's inadequate, we can amend it. That's why there's an amendment provision. That was constitutional orthodoxy. When I say constitutional orthodoxy, I don't mean its just judges and lawyers. Judges and lawyers are not very important. It's ultimately the American people. What do they think this document is?

That they thought the way I think is demonstrated by the 19th amendment, adopted in 1920. That is the amendment which guaranteed women the right to vote. As you know, there was a national campaign of "suffragettes" to get this constitutional amendment adopted, a very big deal to get a constitutional amendment adopted. Why? Why did they go through all that trouble? If people then thought the way people think now, there would have been no need. There was an equal protection clause, right there in the Constitution in 1920. As an abstract matter, what in the world could be a greater denial of equal protection in a democracy than denial of the franchise. [sic] And so why didn't these people just come to the court and say, "This is a denial of equal protection"? Because they didn't think that way. Equal protection could mean that everybody has to have the vote. It could mean that. It could mean a lot of things in the abstract. It could meant that women must be sent into combat, for example. It could meant that have to have unisex toilets in public buildings. But does it mean those things? Of course it doesn't mean those things. It could have meant all those things. But it just never did. That was not its understood meaning. And since that was not its meaning in 1871, it's not its meaning today. The meaning doesn't change.

There have been a lot of reasons why you could deny the vote, not only on the basis of sex, but also on the basis of property ownership. On the basis of literacy. It was never regarded as a denial of equal protection. And since it never was, it isn't. That's how they thought. Now you know that that wouldn't happen today. You know that that issue today would be resolved in the Supreme Court. People would come to the court and would say, "The equal protection clause should mean this, and therefore it does meant that. Nevermind what it originally meant."

How much things have changed is reflected in our case law, most clearly in our 8th amendment jurisprudence. The 8th amendment prohibits cruel and unusual punishments. Some of our cases in recent years say that what constitutes cruel and unusual punishments depends on the age. What comes with the 8th amendment changes according to, and this the phrase that our opinions use, "to reflect the evolving standards of decency of a maturing society." Every day, in every way, we get better and better. Now you know that Pollyanish attitude is not the attitude that is possessed by people who adopt a bill of rights. People who adopt a bill of rights know that societies not only evolve, they also rot. And they are worried that future generations may not have the integrity and the wisdom that they do, so they say, "Some things we are going to freeze in, and they will not change." But no, with all this development, away from originalism, has [sic] occurred within the past forty years. [sic] Today, we say in our opinions, We believe, the court believes, and worst of all the American people believe that not only the 8th amendment but the whole Bill of Rights, the whole Constitution, "reflects the evolving standards of decency of a maturing society." Or, to put it more simply, the Constitution means what it ought to mean. Not what it did mean, but what it ought to mean. And so, all sorts of rights that clearly did not exist at the time of the Constitution today. It's plain that the right to an abortion was not thought to exist in 1791 or at the time that post-Civil War amendments were adopted; absolutely plain. There were laws against them in all the states.

Absolutely plain that there is no right to die; there were laws against suicide. And you can go right down the list.

This is not, I caution you, a liberal versus conservative issue. Conservatives are fully as prepared to create new rights under this evolutionist theory of the Constitution, as liberals are. Last term, we created a big brand new one that the liberals like, when we held in Rohmer that a state could not be constitutional amendment prohibit its subunits from providing special treatment on the basis of homosexuality. Liberals like that one. But the same term, in fact within weeks of it, I believe, we also said that there is a federal constitutional right, which my Constitution doesn't reflect, not to have an excessive jury verdict. We struck down excessive punitive damages. Now there have been excessive jury verdicts for over 200 years. Nobody ever thought that it was a federal matter, that it violated the federal Constitution. Punitive damages are no different in that respect from excessive compensatory damages. So it's not liberal/conservative.

It's modernist versus the traditional view of the Constitution. It should not be thought, although it is often argued, that this new way of looking at the Constitution is desirable because it promotes needed flexibility. That's the argument you sometimes hear. The argument is usually made in anthropomorphic terms, like the people who talk about the stock market is resting for a new assault at the 4000 level. They do the same thing with Constitution. The argument is "The Constitution is meant for a living society. If it could not grow and evolve with the society, it would become brittle and snap. You have to provide the flexibility." A very plausible argument. It sounds wonderful until you start to think, "Now, wait a minute. Do these people, who want to chuck away the old original, constitution, is it flexibility they're looking for?" What was the situation, before Roe vs. Wade? If you wanted a right to an abortion, create that right the way a democratic society creates most rights. Pass a law. If you don't want it, pass a law against it. Or capital punishment. I have sat with three colleagues on the Supreme Court who thought that capital punishment is unconstitutional. Even though the Constitution mentions capital punishment. The clause you're all familiar with: "No person shall be deprived of life, liberty or property without due process..." What do you think they're talking about? They're talking about the death penalty. And elsewhere, it says you shall not be sentenced for a capital crime without a grand jury indictment. What do think they're talking about? They're talking about the death penalty, clearly approved in the text of the Constitution. It doesn't matter. For the constitutional evolutionist, everyday is a new day. And so, the death penalty may be unconstitutional. Now does that produce flexibility? Under the original disposition, you want to have the death penalty? Enact it. You don't want it? Repeal it. That's flexibility.

So these people who go around talking about the need for growing and bending -- that's nonsense. What these people want is to impose a view of things on the whole society from coast to coast, and it is most quickly and most effectively done through the Constitution. Now there's several vices to a non-originalist approach to the text of the Constitution. The first difficulty with it, and the most important really, is the question of legitimacy. The Constitution of the United States nowhere says that the Supreme Court shall be the last word on what the Constitution means. Or that the Supreme Court shall have the authority to disregard statutes enacted by the congress of the United States on the ground that in its view they do not comport with the Constitution. It doesn't say that anywhere. We made it up. Now, we made it up very sensibly, because what we said was "Look, a constitution is a law, it's sort of a super-law." This is what Marbury v. Madison said. And what the law means is the job of courts. They have to say it all the time. Courts frequently have to try to reconcile conflicting statutes, for example. In doing so, they have to interpret them. If they cannot reconcile them, they simply say the more recent one prevails over the older one. And in the case of a "super- law" such as the Constitution, when they can't reconcile the law and the "super-law", the constitution prevails. And, says John Marshall, "That's what courts do. It is assuredly the function of the courts to say what the law is."

It's lawyer's work. But if that is not what the Constitution is, if it is not a text, like a statute, which means what it meant when it was passed. If it is rather sort of an empty bottle that contains the aspirations of the society, just all sorts of wonderful aspirations, the precise content of which is quite indeterminate. No cruel and unusual punishment today, it may mean the death penalty is ok, tomorrow it won't. Due process of law, whatever that means. We're just in love with these abstractions, and the Supreme Court in the future shall decree for us what these abstractions mean. Now if that's what the Constitution is, it's a sort of list of aspirations, not a real law, then Marbury v. Madison is wrong.

I'm not very good at determinating what the aspirations of the American people are. I am so out of touch with the American people. I don't even try to be in touch. People mention movie stars and I don't know who they're talking about. I get a blank look on my face. If you want somebody who's in touch with what are the evolving standards of decency that reflect a maturing society, ask the congress. And of course that's the way it's done in the United Kingdom. The parliament says what the English constitution consists of. So if you really believe in the evolving theory, we made a mistake in Marbury v. Madison, and the Supreme Court shouldn't stick its nose into this stuff at all. It should be up to the congress to determine where we evolve. What makes you think a committee of nine lawyers ought to tell where we're evolving to. I mean, I'm a philosophy minor, but I didn't train as a philosopher. I'm just a lawyer, just between you and me. That's what I'm really good at. The second problem with non-originalism is suggested by what I call it. By the name, "non-originalism."

There is saying in politics that you can't beat somebody with nobody. No matter how bad the candidate run by the other party is, unless you put somebody up you're going to loss. It's the same thing for philosophies of constitutional interpretation. If you don't like originalism, and some originalism pause to debate. Originalism has a lot of problems. It's not always easy to do. Sometimes it's very hard. Sometimes it's awful hard to tell what the original meaning was. I'll acknowledge all of that. But the real problem is not whether it's the best thing in the world, but whether there's anything better. And what you have to ask the non-originalist law professor or whoever else is, "what do you propose?" What does a judge consult, if not the original understanding of the text? What binds the biases of judge? Prevents him from simply implementing his own prejudices? What is the standard? And the fact is, I have never heard another one that has a snowball's chance in hell of ever being adopted by more than two people. What are you going to use? The philosophy of Plato? Natural law? That's handy. That will tell judges what to do. Some suggest the philosophy of John Raule. Public opinion polls? Is that what you want? What do you want to use? If you don't take what I suggest, what is the standard? The answer is, there isn't any.

And so imagine what a court that is confronted with a constitution believed to be an empty bottle; imagine how a case must be decided. For example, whether there's a right to die. Now if you come tome as a lawyer, I say, oh, I can tell you where there's a right to die. I can look up all these cases. It was criminal in all the states. Nobody thought it was unconstitutional. Clearly understood not to be any federal right to die. But if that doesn't matter, if every day is a new day, and we're talking about the evolving standards of decency of a maturing society, how do I decide it? I don't have any books I can run to. So you can imagine how it must be decided: "Do you think there ought to be a right to die? How about you? Well, that's fine, there must be a right to die." What else are you going to use? And finally I will mention the last deficiency of non-originalism. And that is, in the run[sic], it is the death knell of the constitution[sic]. As I suggested earlier, the whole purpose of the constitution[sic] is to prevent a future society from doing what it wants to do. That's the whole purpose. To change, to evolve, you don't need a constitution, all you need is a legislature and a ballot box. Things will change as fast as you want. You want to create new rights, destroy old ones? That's all you need. The only reason you need a constitution is because some things you don't want the majority to be able to change. That's my most important function as a judge in this system. I have to tell the majority to take a hike. I tell them, "I don't care what you want, but the bill of rights[sic] says you cannot do it." Now if there is no fixed absolute, if the constitution evolves to mean what it ought to mean today. What makes you think the majority is going to leave it to me or to my colleagues to decide what it ought to mean? They will do that if they think it's lawyer's work. If that's no[sic] what the game is about, if that's not what our judges do on the supreme court[sic], if they are supposed to tell us what are the evolving standards of decency that reflect a maturing society I won't look for that quality in my judges. I will look for judges, and a majority of the people will look for judges who agree with them as to what the constitution[sic] means. And so you have the absolutely crazy. We are conducting a mini plebicite[sic] on the meaning of the constitution[sic] every time we select a new person for the supreme court[sic]. Isn't that what's happening? Does it make any sense? but I suggest that is the inevitable result if you abandon originalism and move to a constitution that means what if ought to mean. The people are going to decide what it ought to mean, who will leave technical legal questions to lawyers. But if the question is simply, should it be a denial of equal protection, not was it, but should it be a denial of equal protection for women not to have the vote, they're not going to let a committee of nine lawyers decide that question. They're going to pick the committee that agrees with them. So at the end of this long process, this great evolution from stuffy old originalism to an evolutionary constitution we arrive at the point where the meaning of the constitution[sic], the most important part of the constitution[sic], the bill of rights[sic], is decided upon by the very body that the bill of rights is supposed to protect you as an individual against. Namely, the majority. That seems to me the inevitable demonstration that the only sensible way to construe a constitution is the way you construe statutes. What did its words mean when they were adopted? I think we depart from the traditional view of the constitution[sic] at our own risk. Unfortunately, we've affected the world with this novel view of the constitution[sic]. Many European countries envy the United States supreme court[sic] because of its wonderful power to create rights that ought to exist and eliminate rights that ought not. I suggest this is a very new enterprise. We've only been doing it for forty years. We haven't lasted for 200 years doing it. And we haven't gone far down the road. I think at the end of it, at the end of the road, there is really a serious weakening of constitutional democracy. Thank you.