“You guys don’t get to see Supreme Court justices,” Scalia said Thursday to a packed audience at the UW Fine Arts Center that included U.S. Sen. John Barrasso, R-Wyo., and all members of the Wyoming Supreme Court.
Scalia last visited the state in September 2008 when he spoke before the Wyoming State Bar in Cheyenne.
The hard-boiled constitutional "originalist," known for his linguistic austerity, showed his lighter side on Thursday. He was less a strident observer of the law and more of an entertainer, resembling Jackie Gleason with his jokes, slicked-back hair, baby-faced smile and New York attitude. Like any good performer, his campy side didn’t overshadow his message: the enormity of a “living Constitution.”
Scalia's ethos is that of many Wyomingites. The originalist moniker represents someone who believes the Constitution is an enduring document — not a flexible, living one that evolves with the standards of society.
“It doesn’t change,” he said.
The founding fathers feared a future generation that would misinterpret the Bill of Rights and wanted to restrain future societies from misconstruing the document, he said.
“A constitution that evolves isn’t worth a whole lot,” he said.
The Constitution is not something applicable to “whatever you care passionately about,” he said with a sardonic grin. A judge who believes in the living Constitution is a happy fellow, he said, because he goes home and tells his wife, “The Constitution means exactly what I thought I wanted it to be.”
Scalia denied that his approach always leads to the most conservative decisions. For example, he said he sided with the court majority in ruling that it's constitutional to allow burning of the U.S. flag. "If I were king," he said, "I'd throw that bearded, sandal-wearing weirdo in jail."
Scalia used the Eighth Amendment, which prohibits cruel and unusual punishments, as an example of the malleability some of the nation’s judges, lawyers and justices have applied to the Constitution.
The death penalty survived for 200 years without prior objection by states. But because of the flexible Constitution and its “evolving standards that mark the progress of a maturing society,” lawyers are turning the courts into legislators, he said.
“What do I know about revolving standards of decency?” he said. “You know who knows about revolving standards of decency? It’s Congress. Especially the House. I don’t even want to know what (the standards) are.”
The court is not an enforcer of the law and needs to abide by precedents, not by society’s interpretations, he said. A common misnomer, he said, is that a living Constitution gives people more freedoms.
He referred to the confrontation clause in the Sixth Amendment that had at one time taken the “right of confrontation away” from citizens. He helped to restore that right when he ruled in Crawford vs. Washington that statements from unavailable witnesses were not to be used in court.
Twenty years before the decision, it wasn’t heresy for testimony from an unavailable witness to be used in court, which prevented the accused from confronting the witness in a cross examination.
Scalia said adherence to the originalist philosophy is what helped overturn the flawed provision in the Sixth Amendment that had ignored hundreds of years of precedent.
"The Constitution will someday, at the end of the road, be destructed,” he said.
The Supreme Court is revising the Constitution “term by term,” and without an originalist philosophy, “what are you going to use?” he said.
He hinted that people would suggest “natural law” or the moralist ideals of John Rawles.
“Give me a break,” Scalia said.
Failing to stick to the original meaning of the Constitution only invites judges to decide on their own how to warp its meaning to fit their own reading, Scalia said. He said that explains the increasingly bitter contests over confirming Supreme Court justices, because senators all want one they believe will rule their way on hot-button issues.
"It's crazy, it's like a mini constitutional convention every time we confirm a new Supreme Court justice," Scalia said. He said he was unanimously confirmed with only two senators absent but probably couldn't get 60 votes today.