Carson Holloway attempts to offer a mix of original public meaning and original intent, which offers an imperfect foundation for originalism.
Fans of the late Justice will treasure a new collection of his speeches.
Justice Antonin Scalia definitely had a way with words. Law students pore over his opinions not just for Scalia’s keen analysis but to delight in the verve of his prose—pungent, clear, combative, and always colorful. Scalia aficionados also savor his books and essays, which showcase his forceful rhetoric and deft pen. Alas, the body of Scalia’s judicial decisions and scholarship, although considerable, is finite. Fortunately, Scalia fans now have a treasure trove of new material to savor, in the form of a recently-released compilation of the late Justice’s speeches, entitled Scalia Speaks: Reflections on Law, Faith, and Life Well Lived.
Compiled by Scalia’s son, Christopher, and a devoted former law clerk, Ed Whelan, the collection features dozens of Scalia’s best speeches (out of hundreds that he delivered), on a variety of subjects, to both legal and lay audiences. The famously affable Scalia (“Nino” to his friends) loved people, and was a bit of a ham, as evidenced by his active involvement in high school and college theater. It is no wonder, then, that he enjoyed speaking all around the world on many different topics. His speeches were performances. It is a testament to Scalia’s eclectic repertoire and love of pedagogy that he crafted his impressively-varied speeches with care—combining erudition with personal reminiscences and humor, always in his distinctive voice.
As his son notes in a touching Introduction, “The charm and gregariousness that drew so many people—including ideological adversaries—to him are prominent throughout this collection.” As if to confirm that point, Scalia’s Supreme Court colleague Ruth Bader Ginsburg, with whom he often disagreed on the Court, provides an affectionate Foreword. The speeches, each with a short headnote, and few of which have been published before, are organized into six broad categories: “On the American People and Ethnicity”; “On Living and Learning”; “On Faith”; “On Law”; “On Virtue and the Public Good”; and “On Heroes and Friends.” The section “On Law” is the longest, with over a dozen speeches regarding the Constitution and Scalia’s view of the role of judges, but Scalia Speaks is not primarily aimed at lawyers; this book will also be of interest to anyone who admires Scalia’s inimitable wit, towering intellect, and remarkable judicial legacy.
In addition to Scalia’s now-familiar views on originalism and the separation of powers, his opposition to “substantive due process” and the notion of a “living Constitution,” and the shortcomings of legislative history, the reader learns about Scalia’s childhood stickball exploits growing up in Queens, tips on writing well, the joys of turkey hunting, the importance of civic education, his Catholic heritage and fascination with Sir Thomas More, high school memories from a military academy in the 1950s (including traveling to his school with his rifle on the New York subway), the value of tradition, the Holocaust, his favorite presidents, and more.
But Scalia Speaks brims with his insights on constitutional law. For example, in a 1989 speech Scalia reflected that
It has become fashionable to speak of the American constitutional system as though it contained within itself the philosophy of John Stuart Mill—that everything must be permitted, and nothing can be forbidden, unless it physically harms another human being. That is simply not so. Consider, for example, laws against bigamy, which the Supreme Court has held to be constitutional. Or laws against public nudity. Or laws against cruelty to animals. It cannot be said that any of these prevents physical harm to another human being—or even aesthetic harm of much significance. (If the nudity bothers you, avert your eyes.) It seems to me that society’s desire for laws of this sort—and all societies have them—is traceable to some common ethos, either religiously based or indistinguishable from religious prescription, which the old writers used to call bonos mores—“good morals.” The most difficult task of constitutional adjudication in modern times, when these shared values are less uniform than they once were, is to decide how far the state can go in preserving a common fabric of morality.
Other observations comport with his judicial opinions but are conveyed with a sprightly flair, such as this quote from a 1992 speech entitled “Faith and Judging”:
The work of the judicial branch is fundamentally different from that of the legislative and executive—or at least it is fundamentally different as I view things. Unlike presidents, cabinet secretaries, senators, and representatives, federal judges do not (or are not supposed to) make policy, but rather are to discern accurately and apply honestly the policies adopted by the people’s representatives in the text of statutes—except to the extent that those statutes conflict with the text, the underlying traditions, or valid Supreme Court interpretation of the United States Constitution.
In the same speech, Scalia reflected on the 19th amendment, adopted in 1920, which guarantied suffrage for women:
No one doubted that a constitutional amendment was necessary for that purpose, even though, in 1920 as today, the Constitution forbade denial of “equal protection of the laws.” What could be more obviously a denial of equal protection than denial of the vote? But the Americans of 1920 understood, as the Americans of 1992 seemingly do not, that the vague provisions of the Constitution, such as the Equal Protection Clause and Due Process Clause, are not invitations to constitutionalize our current desires from age to age, but rather bear a constant meaning that accords with the understanding of those terms when they were adopted. Standing by itself, the phrase “equal protection” can mean almost anything. As applied to distinctions between the sexes, it could be thought to require unisex public toilets and dormitories. Of course it does not mean that, because no one ever thought it meant that. So also (the Americans of 1920 understood) with respect to the right to vote.
One last example: In a 1994 speech, Scalia addressed the justification often advanced by proponents of “flexible” constitutional interpretation to accommodate a changing society. He pointed out that
Most living constitutionalists want to create new restrictions upon the legislative process, not to eliminate old ones. They favor, in other words, less flexibility in government, not more…. No, the reality of the matter is that living constitutionalists are not seeking to facilitate social change but to prevent it, by enshrining their views of morality or of natural law in the Constitution.
Scalia was a giant on the Court, and his presence will be sorely missed. His opinions—and especially his dissents—will long be remembered for their logical force and indominable courage. Moreover, Scalia was an outstanding person: devout Catholic, father of eight, married to his wife Maureen (to whom the book is dedicated) for 55 years, and widely beloved for his personal warmth and convivial personality. Christopher Scalia and Ed Whelan have lovingly assembled and meticulously organized the late Justice’s most noteworthy speeches—an indispensable addition to the Scalia canon. Scalia Speaks is an extraordinary work that all Scalia admirers will treasure.