Scalia Hypes Dead Constitution (April 2001)

Supreme Court Justice Antonin Scalia is a judicial version of a bible literalist, according to Foundation president Anne Gaylor, who, with other Foundation staff members, recently picketed Scalia when he spoke in Madison, Wisconsin.

At two Wisconsin university appearances in March, Scalia decried the idea of the Constitution as a living document:

“A dead Constitution–that’s what I’m selling,” Scalia told a closed audience at the University of Wisconsin Law School on March 15. He said his mission was to persuade them “to love a dead Constitution.”

According to the Capital Times [Madison, WI] coverage, Scalia hinted that he would not find a constitutional right to women’s suffrage under the Equal Protection Clause of the Constitution, saying only the 19th amendment passed in 1920 provided that right. Scalia added:

“If you don’t like the white males, persuade the people and lead a revolution. And you’ll get beat, too.”

Scalia calls himself an “originalist” or “textualist,” saying judges must preserve the original meaning of the two-centuries-old Constitution. The Constitution provides no right to die, no right to an abortion, and no ban on the death penalty, he said. By implication he appears to believe there is no constitutional right to contraception.

“The death penalty–that’s a laugher. Right to die–forget about it. Right to abortion–the same thing,” according to Wisconsin State Journal coverage of the speech.

Scalia seemed to dismiss the broad liberties provided in the Bill of Rights: “The majority wins. If you don’t believe that, you don’t believe in democracy.”

Scalia, a Roman Catholic, was valedictorian at a Jesuit prep school. He worships at a suburban Virginia parish popular with conservative Catholics, which erected a monument to “unborn children” to symbolize opposition to abortion. He is the father of nine children.

In 1971 Nixon gave Scalia his first political appointment. President Reagan appointed Scalia to the United States Court of Appeals for the District of Columbia in 1982. Four years later, Reagan successfully nominated him to the Supreme Court.

Scalia became an outspoken opponent of affirmative action in the early 1980s. His dissenting votes have upheld prayer at public school graduations. Scalia wrote the decision handing George W. Bush the presidency.

Scalia may see his dream of a “dead constitution” realized, given the fact that Bush is expected to replace two or more justices during his term, including “swing” voter Justice Sandra Day O’Connor. Her replacement by a Scalia/ Thomas clone would ensure a 5-4 rightwing majority on the high court.

Freedom From Religion Foundation