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Saturday, July 12, 2014

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Justice Scalia speaks on constitutional interpretation

Supreme Court Justice Antonin Scalia on Friday delivered an impassioned defense of his approach to constitutional interpretation, capping a two-day Princeton conference on James Madison, the fourth U.S. president and framer of the Constitution.

In tones that ranged from playful to pedantic, the justice spelled out how Madison, a Princeton alumnus, followed a strict adherence to the "common sense" meaning of the text itself, fixed in time by the definition of the words when the document was drafted. He contrasted this approach to that of "those who believe that it changes from age to age in order to meet the needs of a changing society."

Scalia warned of the dangers of the latter approach and of depending on the Constitution to correct problems that could be handled by Congress. His originalist view of the Constitution sometimes requires upholding a law that does not make sense, he said.

"It may well be stupid, but if it's stupid, pass a law!" he said. "Don't think the originalist interpretation constrains you. To the contrary. My Constitution is a very flexible Constitution. You want a right to abortion? Create it the way all rights are created in a democracy, pass a law. The death penalty? Pass a law. That's flexibility."

He suggested that the notion of flexibility among those who support interpretation of a "living Constitution" is an illusion.

"They want rigidity," Scalia said. "They want the whole country to do it their way from coast to coast. They want to drive one issue after another off the stage of political debate  Every time you insert into the Constitution - by speculation - new rights that aren't really there you are impoverishing democracy. You are pushing one issue after another off the democratic stage."

In taking questions, Scalia asked the capacity audience in Helm Auditorium to restrict itself to the subject of his talk, but often gave answers that touched on current topics such as the death penalty and abortion.

In response to a question about how people can have confidence in the legitimacy of the Supreme Court or Congress, Scalia said that a strict adherence to the Constitution's original meaning offers the firmest grounding for court decisions.

Focusing on his Princeton audience, Scalia contrasted Madison's approach to that of Woodrow Wilson, former president of the University and of the United States.

"Wilson was the earliest proponent and perhaps the inventor of 'the living Constitution'" Scalia said, pronouncing the last words with mock drama.

"As you may have guessed, I believe that Madison was right and Wilson was wrong. As far as Princeton's record is concerned, one out of two ain't bad."

The conference, "A Constitution for the Ages: James Madison the Framer," was part of the yearlong celebration of the centennial of the Graduate School. Madison is often considered the University's first graduate student, having stayed on after graduation to study Hebrew and ethics.

Contact: Justin Harmon (609) 258-3601

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