by Eric Segall
Last week in Atlanta, the Georgia bar celebrated the 225th anniversary of the United States Constitution by holding a hall of fame legal conference. The participants included Supreme Court Justice Antonin Scalia as well as appellate heavyweights Richard Posner and Alex Kozinski, and a bevy of our most prominent constitutional law professors, commentators, and Supreme Court reporters. Although there were many themes to the conference, the most consistent thread was the tension between those who believe in a “living” constitution and those who believe in a Constitution defined by its “original meaning.”
The proceedings began with ultra-liberal Erwin Chemerinsky and arch conservative Richard Epstein debating whether the Constitution is dead or alive. Chemerinsky observed that if the Constitution only has the meaning it did when ratified, then racial segregation in public schools would be constitutional, women would not have equal rights, and Congress would be disabled from passing minimum wage laws and overtime regulations. Epstein emphatically denied that a dead Constitution would lead to racial segregation or the denial of equal rights for women, but he was positively giddy about the idea that Congress would be deprived of most of its power to regulate the national economy (and didn’t deny such would be the effect of a “dead” Constitution).
Chemerinsky insisted that everyone, including Justices Scalia and Thomas, as well as Epstein himself, believes in a living Constitution when it suits them to do so. Though Epstein denied the charge, he gave the game away when he said that all regulations that reduce the value of a person’s property constitute a takings under the 5th Amendment and require just compensation from the government. I don’t know if such a radically private property protective world would be better or worse for our economy, but it is much more in line with an imaginative future than any recognizable past.
The second day of the conference brought together Supreme Court reporters and bloggers. Amy Howe justifiably lamented that SCOTUS Blog doesn’t have a media pass to the Supreme Court (an absurd oversight by the Justices given the Blog’s important role in covering the Court). Adam Liptak of the New York Times had one of the best one-liners of the three days when he responded (politely) to a question from Georgia Supreme Court Justice David Nahmias who was concerned about how judges are covered in the media. Liptak said in a dead pan voice, “if we get a leak that is news worthy and if that makes your life more difficult that is of absolutely no concern to me."
Both Liptak and Howe agreed that television cameras should be allowed in the Supreme Court, but warned everyone present not to hold their breath.
The afternoon of the second day brought a panel on the Second Amendment (which I organized) and another heated conversation about how judges should go about interpreting a document ratified when it took a full nine seconds to load a gun to fire a single bullet. Nelson Lund suggested a robust reading of the Second Amendment strongly protecting gun rights. Sandy Levinson and Adam Winkler argued that the private right to own guns should be protected, but they would allow the right to be over-ridden by most reasonable legislation, and I argued that Judges Posner and Wilkinson have persuasively made the case that the Second Amendment should only apply to the militia, meaning not at all. We all found common ground, however, and unanimously agreed that the Court’s reasoning in its landmark gun case, DC v. Heller was unpersuasive, inept, and completely oblivious to the most relevant and important history of the Second Amendment.
On Friday the really big guns came out. First Judges Posner and Kozinski, along with Justice Nahmias, talked about what it is like to be lower court judges who have to wrestle with Supreme Court precedent. Whether the Constitution is dead, alive, or something in between, they all agreed that they have a duty to apply it as the highest Court tells them to, but they also agreed that in real life rarely did the Court issue a decision that was clear enough for them to actually follow.
Judge Posner made his usual case that judges often have discretion when deciding cases and that facts and consequences should matter much more than legal rules and prior cases. He also quipped that “there is nothing as ridiculous as the canons of construction, other than the Blue Book,” referring to the writing manual law students see in their nightmares.
Judge Kozinski told a long and eloquent story about the trials and tribulations of trying to decide between deciding a case the way the Supreme Court did a long time ago, or trying to predict whether the Justices will veer from that old law in the next case. He persuasively suggested that trying to figure that out is a fool’s errand (a lesson most of us should take to heart).
Justice Scalia was the last person to take the stage. For about forty minutes, he ranted and raved about how liberals “don’t really want a living Constitution, they want a dead one where rights apply everywhere,” and how “abortion, same-sex sodomy, and (maybe) assisted suicide” were not protected then and therefore “shouldn’t be protected now.” His diatribe about the evils of a changing Constitution may have been more persuasive had he explained exactly when in our history corporations became people whose first amendment speech rights made them immune from campaign finance reform.
Justice Scalia delivered a number of interesting and entertaining one liners:
"Everyone was an originalist before the Warren Court. Judges distorted the Constitution the old fashioned way-they lied about it."
"I don't have to be a historian; I just have to be a judge who can tell the good from the bad.”
"Congressional committee reports are signed by no one and probably written by a teenager."
"That question is a softball ... it reminds me of my confirmation hearing where Strom Thurmond asked me what I thought of judicial activism."
That last line came while Scalia was answering written, prescreened anonymous questions. The very next unsigned question was one that I had written. I asked him how he could sign on to Justice Roberts’ opinion in the recent voting rights case (Shelby County v. Holder) which announced a brand new constitutional principle-that Congress could not treat different states differently without a really strong reason-given that this limitation is nowhere in the text of the Constitution nor supported by its original meaning. Scalia fumbled a bit, said he didn’t read the case that way, and then asked who wrote the question. I was sitting in the front row and made eye contact with the moderator to see if he wanted me to identify myself. He motioned for me to rise so a microphone was brought over and I nervously repeated the question. I don’t often argue with Supreme Court Justices in front of a full house. Scalia again fumbled, and then said I read the case wrong and the decision only required a rational basis (not a strong reason) for Congress to treat different states differently. I will let history be my judge on this dispute (I’m right) but I was most interested to hear Scalia go on to say that, even if Congress had a rational basis for treating different states differently at the time of the Civil War, that rational basis no longer exists in today’s United States, so the Shelby County Court was correct to rule the way it did. In other words, what “equal state sovereignty” meant in 1868 is very different than what it means today, as a matter of constitutional law.
I agree with Scalia’s approach, and would use the same method of interpretation for principles like “equal protection of the law,” and “cruel and unusual punishment,” and the living Constitution lives on for at least another day.