Is Scalia campaigning for chief justice?
Justice delivers denunciation of 'living Constitution' theory, with TV cameras broadcasting live

By Tom Curry

Updated: 7:18 p.m. ET March 14, 2005 WASHINGTON - Speaking to an audience of about 50 people at the Woodrow Wilson Center in Washington Monday, Supreme Court Justice Antonin Scalia denounced the idea that the Constitution is “a living document” in which judges can find new meanings that were not intended by those who wrote it.

“The Constitution is not a living organism, for Pete’s sake, it is legal document, and like all legal documents, it says some things and doesn’t say others,” he said.

In the past 30 years, in its abortion, homosexual sodomy and death penalty decisions, the Supreme Court has, Scalia, said, “essentially liberated itself from the text of the Constitution … and even from the traditions of the American people.”

What he sees as a trend of judges reading new meanings into the Constitution “will destroy the Constitution,” he predicted.

Scalia explained his dissent from the court’s decision on March 1 to ban the execution of those under age 18. The five-justice majority said such executions violated the Eighth Amendment.

Sticking to 1791 text
“What was ‘cruel and unusual’ and unconstitutional in 1791 remains that today. Executing someone under 18 was not unconstitutional in 1791, so it is not unconstitutional today. Now, it may be very stupid, it may be a very bad idea, just as notching ears, which was a punishment in 1791, is a very bad idea. But the people can … eliminate those stupidities if and when they want. … All you need is a legislature and the ballot box.”

He said Americans also can create a right to abortion or can legitimize homosexual sodomy democratically, through their state legislatures and Congress, if they want to do so.

Scalia allowed C-Span to broadcast his speech live here in Washington. It was the second time in two months that he has allowed C-SPAN and its cameras, as well as other reporters, to cover his public appearances live.

Until recently he gave a cold shoulder to reporters: A federal marshal accompanying Scalia erased two reporters’ tapes last year when he gave a speech in Hattiesburg, Miss. Scalia later apologized for the incident.

In 2003, Scalia insisted that City Club of Cleveland bar radio and television journalists, including C-SPAN, from covering the event, at which he accepted the Citadel of Free Speech award.

In his salon-style chat with Justice Stephen Breyer at American University on Jan. 13, also broadcast live on C-SPAN, viewers saw a chummier Scalia than the one reporters see during the Supreme Court's oral arguments, where he is sometimes sardonic and mocking.

A 'charm' campaign?
Could Scalia’s recent openness be part of a campaign for chief justice, if Chief Justice William Rehnquist retires?

Nan Aron, president of the Alliance for Justice, a liberal-leaning group that has sharply criticized Scalia in the past and opposes many Bush judicial nominees, said, “Try hard as he will, certainly his public relations effort will not be able to cover for what is a very troubling record in terms of civil rights, women rights, privacy and the environment. His new charm offensive will not fool anyone.”

But a Scalia fan, Kevin Ring, a Washington attorney who has edited a book of Scalia’s dissents, said, “I think the idea of a ‘charm offensive’ is overblown. He is not rounding off the edges.”

As evidence, Ring cited Scalia’s harsh dissent from the court’s death penalty decision.

And he pointed to Scalia’s defense of religion as the basis for government in the oral argument two weeks ago about the Ten Commandments monument in Austin, Texas.

“The message it sends is that our institutions come from God,” Scalia told Texas Attorney General Greg Abbott, who was defending the monument. “And if you don't think it conveys that message, I just think you're kidding yourself.”

“I joked to a friend that that ensured an extra day of Senate hearings if he’s nominated as chief justice,” Ring said.

Confirmed unanimously
As Scalia noted in his speech Monday, the Senate confirmed his nomination as associate justice in 1986 by a vote of 98 to 0.

But he told the audience, “Today, barely 30 years later, it is difficult to get someone confirmed to the court of appeals.” And that is, he argued, because judges have become so ideological and so powerful.

“If we’re selecting lawyers, if we’re selecting people to read a text and give the fair meaning it had when it was adopted, then the most important thing to do is to get a good lawyer,” he said.

“If, on the other hand, we are picking people to draw out of their own conscience and experience a new constitution, with all sorts of new values to govern our society, then we should not look principally for good lawyers. We should look principally for people who agree with us, the majority, as to whether there ought to be this right, that right or the other right.”

When judges become lawmakers reflecting the will of the majority, Scalia said, “We have rendered the Constitution useless.”

© 2005 MSNBC Interactive