U.S. Supreme Court Justice Antonin Scalia shared his rule of thumb for constitutional interpretation with a crowd of lawyers, law students and faculty from the UB Law School Wednesday afternoon: the Shakespeare principle.
The principle, courtesy not of a legal scholar or a jurist but of a high school English teacher, came when a "sophomoric" classmate took issue with the Bard's famous tragedy, "Hamlet."
"Mista," Father Tom Matthews told the student, "When you read Shakespeare, Shakespeare's not on trial, you are."
Society's long-established traditions, Scalia said, are to the judge as Shakespeare is to the English student.
As an "originalist," Scalia believes judicial opinion should be based on strict interpretation of the words of the Constitution or, when the text is ambiguous, it should be interpreted as it was when the text was written.
"When I'm called upon to say what the text means . I look to what people have said for hundreds of years."
The equal protection clause of the 14th Amendment, for example, "could mean that the Constitution requires you to draft women into combat or unisex toilets," Scalia said. But, he continued, that is not what the founders or society today believes, so it is not the phrase's proper meaning.
Over 900 people, including 130 UB law students and 45 members of the judiciary, attended the luncheon, which sold out only weeks after its announcement.
Throughout the 40-minute speech at the Hyatt Regency hotel in downtown Buffalo, the Ronald Reagan appointee attacked proponents of the "living constitution" - the idea that the Constitution's meaning should adapt to the changing social consensus of the time just as living organisms adapt to their environment.
"We have an enduring Constitution, not a living one," Scalia said. The text "says what it says and ought not to be twisted."
Scalia said the living constitution renders the amendment process - the Constitution's built-in flexibility mechanism - meaningless. If the Constitution can be altered simply by changing judicial interpretations to meet modern whims, he said, why would anyone undergo the arduous process of amending it?
He used the example of the 19th Amendment that extended suffrage to women. "When we wanted to change something, we did it the old-fashioned way. We adopted a constitutional amendment."
Scalia, who was invited to Buffalo by Rabbi Noson Gurary of the Chabad House of Western New York, spoke primarily about constitutional interpretation with respect to the dual religious clauses of the First Amendment - the free exercise of religion and the prohibition of laws aimed at the establishment of religion.
A Roman Catholic, Scalia met Gurary in his first years on the bench when he was "the closest thing to a Jew on the Court."
Scalia criticized the Court's reliance on judicially-crafted "tests" to balance competing interests in religion cases, often ignoring long-standing traditions.
"The pull of tradition and the pull of historical practice is stronger than the pull of analytical abstractions," he said.
The associate justice said cases that require weighing competing values are often best left to the elective branches of government, especially state and national legislatures.
Scalia used the example of the "compelling state interest" test formulated in the 1963 case Sherbert v. Verner - a notion he called "fanciful, even in theory." Under Sherbert's balancing test, government actions that severely burden a religious practice must be justified by a compelling state interest.
Sherbert was overruled in 1990 in what Scalia called his "most popularly acclaimed opinion." The case, Oregon v. Smith, involved the religious use of peyote, a hallucinogenic drug proscribed under the state's controlled substance law. Two drug counselors were fired because as members of the Native American Church they had been ingesting peyote for ceremonial purposes.
"I don't know whether you smoke it or drink it," Scalia said, but evidently the state thought it was "not a very good thing for a drug counselor to be doing."
Scalia said it was not the duty of the Court to find the "constitutional tipping point" where the importance of the state to maintain the rule of law outweighs the religious importance of an act to an individual.
To demonstrate the inherent subjectivity of the state interest test, Scalia cited the 1879 decision in which the Court upheld a federal law against bigamy, despite the fact that the practice is a central tenet of Mormon faith. Preventing bigamy is not a compelling state interest, he said, unless compelling is "what you really don't like."
In such constitutionally hazy situations, "the legislature is a better barometer of what we really don't like than five out of nine lawyers," Scalia said.
Religious exceptions to general laws, such as the Catholic use of wine during Prohibition or the excusal of conscientious objectors from combat, he pointed out, were created "not by judicial prescription, but by legislative or executive grant."
Scalia noted that when questions are constitutionalized, that signals the end of debate in a democracy. "One stroke of the pen and it becomes a law from coast to coast, from now until forever."
He suggested that controversial issues like the death penalty and abortion should be left to the public, not determined by appointed justices. "Five out of nine lawyers should not decide changes for the whole country," he said.
Scalia believes that as the process of selecting judges becomes more politicized, presidents are not going to select "good, solid lawyers" but "people who agree with them."
During the question-and-answer session, one audience member asked Scalia whether the preamble's vow to "secure the blessings of liberty to ourselves and our posterity" applies to the unborn.
Scalia replied that the 14th Amendment's provision requiring representatives be apportioned on the basis of the "whole number of persons in each state," does not require that pregnant women be counted twice. He also said that while there was "nothing in the Bill of Rights that remotely resembles a right to abortion," there is also nothing that disallows it.
In response to a question about the Court's involvement in the 2000 Election, Scalia pointed to the equal protection clause of the 14th Amendment and the constitutional provision affording state legislatures the power to choose electors.
The justice said it was a denial of equal protection to count the votes of some but not others on the basis of hanging chads or some other determination, and said the Florida Supreme Court's rulings deviated so far from the state legislature's will as to violate the Constitution's requirements.
"These are constitutional texts," Scalia said. "I'm not making it up."