This text is reproduced from the Web Archive copy of material originally posted by the University of Georgia. Its copyright status is unknown - please contact us if you have answers! The speech was delivered at the UGA school of Law by Justice Scalia on April 6th, 1989 (Thanks to Jim Hlavenka of Lafayette College for this info).

Thank you Dean Ellington, President Knapp, faculty and students of the University of Georgia, ladies and gentlemen. It is a pleasure to be here in Athens on such a lovely day. I'm sorry to bring all of you as well as me indoors. I'm also sorry that Dean Ellington . . . he read from three opinions - two were dissents and one was a concurrence. As I think the announced subject indicated I intend to share with you today a few thoughts on a subject that has been occupying a fair amount of my concern lately - the Constitution of the United States.

If you have ever been to a formal dinner in England you will recall that after dessert and coffee and before it is permitted to light a cigarette, it is customary for a toast to be presented which goes: "Ladies and Gentlemen, The Queen." And if you have ever been to a diplomatic function in which both representatives of Great Britain and of the United States are present you will recall that it is a custom for the Americans to reply to that toast with another one: "Ladies and Gentlemen, The President of the United States." I've heard that progression fairly often and every time I hear it, it strikes me wrong. The President is, of course, both our chief executive and our head of state; sort of the Prime Minister and the Queen rolled into one. But if one wishes to evoke the deep and enduring symbol of our nationhood, of our unity as a people, it seems to me that the equivalent toast should be: "Ladies and Gentlemen, the Constitution of the United States." For that is really the equivalent of the royal armies that brought one nation out of diversity. And it is not only the token but, indeed, the substance of what continues to bind us together as a people.

The Constitutional scholar and political philosopher Walter Burns published a book several years ago entitled Taking the Constitution Seriously. That is a play on words which the law professors and students here will understand. In that he made the striking observation (striking to me at least because I'd never thought of it) that the word "un-american" has no real equivalent in any other language. It would mean nothing in french political discourse to call a particular idea, let's say the abolition of free speech "un-french," or in german political debate to call a particular idea "un-german." Unlike any other nation in the world, we consider ourselves bound together not by genealogy or by residence but quite genuinely by belief in certain principles and the most important of those principles are set forth in the Constitution of the United States. Such is the veneration we have for the document. In fact this may not have occurred to you, but we don't even amend it the way any sensible person amends other documents. When statutes are amended you take the old one, throw it out, and insert the new one. The same is done with most state constitutions - excise the old and insert the new. Not so with that venerated document that is our United States Constitution. To the contrary, if a foreigner should happen to read through the document, unless he takes the trouble to read as far as the seventeenth amendment, for example, he would believe that we elected our senators by state legislatures. We append all of the amendments at the end. That is how reluctant we are to touch that venerable document . . . that symbol of our nation.

One difficulty with a symbol is that it comes to be taken for granted. By the time you have gotten out of high school, you have heard praise of the Constitution so often that you begin to suspect that is just a lot of jingoistic exaggeration, that other countries' constitutions are, in fact, quite as good as ours and the only thing exceptional about ours is that it is ours. Well let me tell you of a little incident that persuaded me to the contrary. In the years when I was in the Department of Justice, I was the head of the division called the Office of Legal Counsel. While I was there, the correlative office in the Italian government was celebrating its anniversary and invited their corresponding figures from all the major countries of the world to go to Rome to celebrate. That office was called -- it was actually an office that combined functions both of the Solicitor General and of my office, the Office of Legal Counsel, with the function of giving advice to agencies. So I went from Washington from the Department of Justice. Those of you familiar with the Justice Department building know that it is an art deco building on Constitution Avenue. And I go over to Rome to the office of the Avocatora de lo Stato which happens to be located in a building that is the former headquarters of the Augustinian order where Martin Luther lived when he was in Rome, and the mind reeled backward at the contrast between the newness of my art deco Justice Department and these ancient quarters for the Avocatora de lo Stato. But then it occurs to me, the Avocatora de lo Stato is celebrating its 100th anniversary. Big deal, I am coming from a nation that is about to celebrate its 200th. We have been a nation living under this one constitution for more than a century longer than Italy was anything more than a geographic description rather than a description of a nation; for more than a century longer than Germany was anything more than a geographic description. France has been through five written constitutions while we have been living under this one and something like 11 systems of government if you count those without constitutions. So although we Americans may indeed be the "new kids on the block" in many areas, in the field of government, we are the most venerable nation in the world and our constitution is the most venerable and successful system of government in the world.

The wondrous durability of the document is a attributal to a whole series of irreplicable circumstances -- incredibly lucky, if you will, or as many of the founders thought, providential. When else has a government been established not by conquerors dividing up the spoils or even by political parties parceling out the power but by a four-month seminar consisting of many of the most erudite and politically experienced individuals in the nation?

The historian Clinton Rossiter has described the prominence of the 55 delegates to the Constitutional Convention as follows:

"The Republic had two men of world-wide fame and both were there. (He was referring, of course, to George Washington and Benjamin Franklin). It had perhaps ten who were well known within the bounds of the old British Empire and at least five of that description were there: Johnson, Livingston, Robert Morris, Dickinson, and Rutledge, Gorham, Roger Sherman, Ellsworth, Hamilton, Mifflin, Wilson, Madison, With, Williamson, Charles Pinckney, and the untraveled Mason had won themselves, as best one could in those days of poor communications, continental reputations. Langdon, Read, Randolph, Alexander, Martin, Jenifer and C.C. Pinckney were major figures in their states and almost every other delegate was someone whose standing was unchallenged in his part of the country."

As for governmental experience, all but one or two of the framers had served as public officials of a colony or a state. A remarkable 42 of the 55 served in the Congress of the United States under the Articles of Confederation. And as for education, in an age when few even from the richest families went to college, the 55 members of the convention included nine graduates of the College of New Jersey (now Princeton), four graduates of Yale, four from William and Mary, three from Harvard, two from Kings college (now Columbia), two from the College of Philadelphia (now the University of Pennsylvania), and one each from Oxford and Saint Andrews. Several others had studied law at the Inns of Court and a number of those mentioned earlier had done graduate work. The professors here will be pleased to note that six of the 55 held professorships or tutorships. These extraordinary individuals, quite literally a large part of the cream of the society at the time, did not meet a couple of times to vote on reports prepared by their staff which, of course, would be the way that it would be done today. They met personally five or six days a week, five or six hours a day from mid-May to mid-September -- almost an entire baseball season. And after the plenary sessions they often filled their evenings with committee work or informal discussion. Imagine getting individuals of equivalent prominence in our society today to devote that kind of time to that kind of project.

Yale University Press has recently come out with a paperback edition of Farrand's records of the convention consisting principally, of course, of the notes that James Madison kept. I urge especially those of you who are interested the law, some rainy weekend to read them. They are full of the spirit of the age of reason -- a belief that seems almost naive to us cynical moderns -- that the application of logic and experience to any problem will produce, if not perfection, at least improvement. They were engaged in the enterprise of what James Madison called "the new science of government." The records are also filled with spirit of open honest discussion and persuasion. What impresses the reader of those records is how often the views that are expressed by one of the delegates at the end of the convention are quite different from the views that the same person expressed at the beginning, because in the interim he had been persuaded by the comments of his colleagues. I might interject that that openness to persuasion is as essential to the continuation of our republic as it was to its formation. So also is the spirit of humility and of generous acceptance of the majority's judgment expressed in the famous concluding speech of Benjamin Franklin when he urged all of the delegates on the last day of the convention to come forward and sign the final document. We have that speech in its original form since Franklin, who was 81 and in poor health, was unable to stand long enough to read it so he gave the written text to James Wilson to read. Wilson later gave it to Madison to copy. That concluding speech of the great man went as follows in part:

"Mr. President, I confess that there are several parts of this constitution which I do not approve, but I am not sure I shall never approve them. For having lived long I have experienced many instances of being obliged by better information or fuller consideration to change opinions even on important subjects which I once thought right but found to be otherwise. It is, therefore, that the older I grow the more apt I am to doubt my own judgment and to pay more respect to the judgment of others. (Franklin is a very wily fellow you may gather from this.) In these sentiments, sir, I agree to this constitution with all of its faults, if they are such, because I think a general government necessary for us and there is no form of government but what may be a blessing to the people if well-administered and believe further that this is likely to be well-administered, for a course of years. (When he says that, of course, he is looking back over his shoulder to the president of the convention who is George Washington whom everybody knows has a lock on the presidency for the first few years anyway.) I doubt, too, whether any other convention we can obtain may be able to make a better constitution. For when you assemble a number of men to have the advantage of their joint wisdom, you inevitably assemble with those men all their prejudices, their passions, their errs of opinion, their local interests, and their selfish views. From such an assembly can a perfect production be expected? It therefore, astonishes me, sir, to find this system approaching so near perfection as it does and I think it will astonish our enemies. Thus I consent, sir, to this constitution because I expect no better and because I am not sure it is not the best. The opinions I have had of its errors I sacrifice to the public good. I have never whispered a syllable of them abroad. Within these walls they were born and here they shall die."

Franklin kept good on that promise as almost all of the other members of the convention, not criticizing the document in the years leading to ratification that followed even though none of them thought every single provision of it was the way he would most have desired.

Having said a lot about the process of that unique convention that framed this document, let me say just a little bit about its product. That product did not include the portion of the Constitution that lawyers have most occasion to invoke - the Bill of Rights. That was added, as you know, on the proposal of the first Congress as the first ten amendments to the Constitution, although an understanding of something of the sort would be proposed was virtually a condition of ratification by several of the states. It is paradoxical however, that what was an afterthought should have become the most celebrated feature of the Constitution. In the commemoration of the Bicentennial that we've been going through and will continue to go through until 1991, which is the anniversary of the Bill of Rights -- in those celebrations the specific provisions that are normally given the most extensive, if not the exclusive, attention are not bicameralism of the legislature or the separate election of the President or the Presidential veto power or life tenure for judges, or the brief two-year terms of the members of the House, or the six-year term for members of the Senate, or any of the other expertly-crafted provisions that pertain to the structure, that is to say, the constitution of government, but rather freedom of speech, freedom of religion, freedom of the press, and so forth -- provisions of the subsequently adopted Bill of Rights, so completely does that portion of the document attract the affection and devotion of the people. But if the virtue of a constitution is to be assessed primarily on the basis of that popular feature, one must admit that the Constitution of the United States fares rather poorly. Take for example, provisions against governmental intrusion upon privacy. The United States Bill of Rights contains nothing more explicit than the following:

"The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated and no warrants shall issue but upon probable cause supported by oath or affirmation and particularly describing the place to be searched and the persons or things to be seized."

Well, compare that with the much more explicit and extensive guarantees that are set forth in a prominent modern constitution which reads:

"Citizens are guaranteed inviolability of the person. No one may be arrested except by a court decision or on the warrant of a procurator. Citizens are guaranteed inviolability of the home. None may without lawful grounds enter a home against the will of those residing in it. The privacy of citizens and of their correspondence, telephone conversations and telegraphic communications is protected by law."

Or consider freedom of religion. Our first amendment says no more than the following:

"Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof."

Compare that with the prominent modern constitution that says:

"Citizens are guaranteed freedom of conscience, that is the right to profess or the right not to profess, any religion and to conduct religious worship or atheistic propaganda. Incitement of hostility or hatred on religious grounds is prohibited."

Or freedom of speech and assembly as to which the United States Constitution says only :

"Congress shall make no law abridging the freedom of speech or of the press or the right of the people to peaceably assemble and to petition the government for an address of grievances."

Compare that paltry guarantee with the modern constitution I've been describing which says:

"Citizens are guaranteed freedom of speech of the press and of assembly, meetings, street processions and demonstrations. Citizens have the right to associate in public organizations that promote their political activity and initiative. Persecution for criticism of state bodies and public organizations is prohibited. Persons guilty of such persecution shall be called to account."

You will see the point that I have been driving towards, indeed, you have probably already guessed it, when I tell you that the modern constitution I have been describing is that of the Union of Soviet Socialist Republics. I would not trade our Bill of Rights, our Constitution, for that in a million years. And if I had to pick a country other than my own in which I thought my individual rights would most secure, I would very likely choose England or Australia, both of which are among the significant holdouts in the universal movement towards bills of rights. The reason, of course, is that a bill of rights only has value if the other part of the Constitution, the part that really constitutes the organs of government, establishes a structure that is likely to preserve against the lust for human power, those liberties that the Bill of Rights expresses. If the people value those liberties the proper constitutional structure that Madison and the others thought likely results in their preservation even in the absence of the Bill of Rights. And where that structure does not exist, the mere recitation of the liberties will certainly not preserve them. So while it is entirely appropriate for us Americans in this bicentennial celebration of our founding, to celebrate and decorate our wonderful Bill of Rights, we should realize that it represents the fruit and not the roots of our constitutional tree. The rights it expresses are the reasons that the other provisions exist, but it is those other humdrum provisions that are frequently called in litigation before my court -- technical. It is those other humdrum provisions, the structural mechanistic portions of the Constitution which in James Madison's words "pit ambition against ambition and make it impossible for any element of government to obtain unchecked power." It those humdrum provisions that convert the Bill of Rights from a paper assurance to living guarantee. So it is a lot easier to get a crowd to form behind a banner that reads "freedom of speech or death" than behind one that says "bicameralism or fight." But in fact the latter goes much more to the heart of the matter.

One final thought, all of the provisions of the Constitution, the Bill of Rights and the structural portions as well, will endure in practice only so long as they endure in the minds and the hearts of the people. We have seen, for example, a significant dimming, if not utter disappearance, of the concept of enumerated and hence limited federal power contained in the original document. It is not that the Commerce Clause changed or was amended, it is just that the people's concept of what appropriately came within it altered. That alteration in the people's understanding was first expressed as it always is through the people's elected representatives, who are the first and ultimately the most influential interpreters of what the Constitution means. The Supreme Court stood on that altered understanding in the first quarter of this century but ultimately yielded as for better or worse it must ever yield to the persistent long-term view of the society at large. The court can stand against the distortion of original understanding produced by the temporary excess of one brief era -- the era of McCarthyism, if you need an example. But in the nature of things, the Supreme Court cannot stand against a departure from our traditions that is deep and sustained as the new view of the commerce powers assuredly was. The reason for that is quite simple. It is not that the existing members of the Court yield to public pressure or to the desire to be loved in the press or anything of that sort -- to the contrary, the reason is simply that the judges of the Court are not dispatched from Mars but are drawn ultimately over the long term from the same society that shares that new understanding. So if the understanding persists long enough for better or worse it will ultimately prevail. I say for better or for worse because it is not always for the better. The new understandings do not always, for example, expand rather than constrict individual liberties over the long haul.

In other words, the Supreme Court cannot save this society from itself because over the haul the Court is no more than the society itself. The compromises of principle, the misperceptions of liberty that are believed in the homes, learned in the schools, and taught in the universities will ultimately be the body of knowledge and belief that new justices bring with them to the bench. The Constitution will endure the world only to the extent that it endures in your understanding and affection. That is why I used to find it so upsetting when I taught constitutional law to learn how many law students in major universities, the best and brightest and presumably those most interested in the law, had never read cover-to-cover such a basic part of our constitutional tradition as the Federalist Papers. And it is why I thought it worth the time to speak to you about the Constitution this afternoon. Thank you.