Posted by: Patrick Allen Foster | April 16, 2014

Scalia in Tennessee

Justice Antonin Scalia Speaks with Staff at the U.S. Mission in Geneva (2)

“The beginning of wisdom is that a lot of stupid stuff is not unconstitutional.”

At lunchtime on Tuesday, Justice Scalia gave a speech at the University of Tennessee in Knoxville. He gave a version of his “stump speech,” as he calls it — a basic defense of originalism as a judicial philosophy and guide for constitutional interpretation. Much of it was pretty familiar to anyone who had a working knowledge of originalism or recent Supreme Court history. (I don’t think there are any transcripts of Tuesday’s speech, but this speech is very similar; see also here.)

Some take-aways and observations from Scalia’s talk:

  • “The beginning of wisdom is that a lot of stupid stuff is not unconstitutional,” he said. Courts should not stretch the meaning of a constitutional provision to invalidate a statute just because they think the statute bad policy or because they dislike the result. Originalism implies a circumscribed role for the judiciary, which should show a great deal of deference to the legislative branch. (Shame Scalia didn’t show more deference to the legislative branch in Shelby County.)
  • Scalia provided the fifth vote for the majority in Texas v. Johnson, the 1989 case that affirmed that the First Amendment protected flag-burning. “That was my understanding of the meaning of the First Amendment. You’re entitled to criticize the government, and you can use words, you can use symbols, you can use telegraph, you can use Morse code, you can burn a flag. It’s all expression, and it’s all covered by the First Amendment.” Supposedly, the morning after that decision was released, Scalia came downstairs and heard his wife humming “It’s a Grand Old Flag” as she prepared breakfast.
  • During his prepared remarks, Scalia said that one of the opinions of which he is proudest is Crawford v. Washington, dealing with hearsay testimony and the confrontation clause. (Scalia apparently thinks that opinions like Crawford should make him a “pin-up” for the criminal defense bar. Whatever.) But during the Q&A session later, when a student asked the justice to identify the decision of which he was most proud, Scalia identified Heller.
  • The one thing Scalia said that surprised me a little was that, in his estimation, he and Justice Thomas are the only “thoroughgoing originalists” on the the Court today. Impliedly, then, Alito and Roberts are not thoroughgoing originalists. That seemed an interesting point to this Court-watcher.

Image Credit: Justice Scalia at the U.S. Mission in Geneva, July 2011. Photo by Eric Bridiers. Source: Wikimedia Commons.

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