Justice Scalia

Yesterday, a true giant of the legal community paid a visit to Florida State Law.

Supreme Court Justice Antonin Scalia spoke to a standing room only audience of law students, professors, and prominent judges and attorneys from Tallahassee.

It was an impressive and memorable event. Though constitutional law is probably right behind business law as being my most challenging subject, I knew enough before I ever came to law school to realize the importance of the figure on stage only forty feet away from me.

It seemed that the hardest thing for Justice Scalia to do yesterday during his appearance was to actually walk across the stage. He moved more stiffly than I expected, and his eyes appeared a little cloudy as he sat in a chair awaiting his introduction to us. He seemed much older than the person I have watched on C-Span, 60 Minutes and YouTube. Age is catching up to him, I thought. But he had me fooled.

As soon as he took his place behind the podium, he became 20 years younger. His eyes lost their hazy opaqueness, and his clear and persuasive voice rang out familiarly over the audience. This was the Justice Scalia I expected, and I could easily match his voice with the opinions and dissents by him that I have read in my property, criminal law, criminal procedure, and constitutional law classes. It was a bit exhilarating to think that at the podium just ahead of me was the embodiment and origin of many ideas and expression that have changed the law of the country.

It also amused me to watch some of my colleagues. They were truly in awe of the man, and their facial expressions and enthusiasm reminded me at times of fans I had seen at rock concerts. But this was not a typical audience interested only in being entertained. The people listening to Justice Scalia already knew him in many ways, even if they had never seen him in person before. The people sitting around me were highly intelligent and trained in the law. I could feel them analyzing Justice Scalia's words in the context of everything they had read by him and by other Supreme Court Justices in argument against his ideas.

Of course, Justice Scalia knew his audience, too, and with almost no preamble launched into a discourse on originalism.

Despite what one might think of Justice Scalia's conservative views, I find it difficult to argue with his legal reasoning. I am not the person to properly advocate for an originalist view of the Constitution, but Justice Scalia largely convinced me yesterday that an originalist interpretation is more protective of freedom, more flexible, and more democratic than seeing the Constitution as a "living document." An originalist, by contrast to the "living document" ideology, views the Constitution as an enduring document, and interprets the language as the original framers would have done.

He insightfully noted that people used to say, "There ought to be a law..." when they found something annoying, such as playing a boom box in a public park. People do not say that anymore, though. Instead, if something deeply offends them, they say, "It's unconstitutional."

Justice Scalia effectively pointed out the danger of this shift, of having the Supreme Court treat the Constitution as a living document, capable of changing with the whims of society. When the Supreme Court rules that a law is unconstitutional, it removes that law from democratic debate. Take the example of abortion. Because the Supreme Court has ruled on the matter, it is now largely outside the sphere of Congress. This is less democratic, Justice Scalia argued. Justice Scalia said the better way to affect change in our society is through Congress. Convince your fellow citizens to persuade Congress to pass a law or repeal a law if an issue is important enough to you. Congress has its finger on the pulse of the people, not the Supreme Court. Congress also has more freedom to repeal a law that has fallen out of favor. When the Supreme Court rules on a matter, this is more permanent. It would take the Court overruling its previous decision or a constitutional amendment to undo its decision. Justice Scalia also brought up a couple of cases where treating the Constitution as a living document cut both ways, against liberals and against conservatives.

Though there are some problems with an originalist view, again, I am not the person to take them on here.

Justice Scalia's admitted purpose in visiting our law school was to get law school students to think about "Originalism" versus "The Living Constitution" and the effects it has and will have on our society for years to come. His visit yesterday was a real treat and an event I will probably remember for the rest of my life. It was not lost on me how fortunate I am to be a student here and to have these opportunities.

Until Next Time,

Nathan Marshburn