United States Supreme Court
President and Chief Executive Officer, Freedom Forum
Chief Executive Officer-designate, Newseum
Inspired by The Atlantic's enduring partnership with the Aspen Ideas Festival, the third-annual Washington Ideas Forum gathers an audience of 600 people, including government officials, top business executives, global thought leaders, academics, and celebrities. It is the place to hear - and meet - the most prominent thinkers of our time.
This October 5 and 6, the Forum will once again bring the best and brightest to the table for debate, conversation, and idea-sharing.
James C. Duff is the the president and CEO of the Freedom Forum, the nonpartisan foundation dedicated to the First Amendment and media issues and which runs Washington, D.C.’s Newseum, the First Amendment Center, and the Diversity Institute at Vanderbilt University in Nashville, Tennessee.
Antonin Scalia, Associate Justice, was born in Trenton, New Jersey, March 11, 1936. He received his A.B. from Georgetown University and the University of Fribourg, Switzerland, and his LL.B. from Harvard Law School, and was a Sheldon Fellow of Harvard University from 1960-1961.
He was in private practice in Cleveland, Ohio from 1961-1967, a Professor of Law at the University of Virginia from 1967-1971, and a Professor of Law at the University of Chicago from 1977-1982, and a Visiting Professor of Law at Georgetown University and Stanford University.
He was chairman of the American Bar Association's Section of Administrative Law, 1981-1982, and its Conference of Section Chairmen, 1982-1983. He served the federal government as General Counsel of the Office of Telecommunications Policy from 1971-1972, Chairman of the Administrative Conference of the United States from 1972-1974, and Assistant Attorney General for the Office of Legal Counsel from 1974-1977.
He was appointed Judge of the United States Court of Appeals for the District of Columbia Circuit in 1982. President Reagan nominated him as an Associate Justice of the Supreme Court, and he took his seat September 26, 1986.
Antonin Scalia, Associate Justice of the Supreme Court, posits that the decentralization of power which sometimes causes gridlock in the United States government is also what makes America "the freest country in the world."
Monthly journal of literature and opinion, one of the oldest and most respected of U.S. reviews. Published in Boston, it was founded in 1857 by Moses Dresser Phillips. It soon became noted for the quality of its fiction and general articles, contributed by distinguished editors and authors such as James Russell Lowell, Ralph Waldo Emerson, Henry W. Longfellow, and Oliver Wendell Holmes. In the early 1920s it expanded its scope to political affairs, featuring articles by figures such as Theodore Roosevelt, Woodrow Wilson, and Booker T. Washington. In the 1970s increasing costs nearly shut down the magazine; it was purchased in 1980 by Mortimer B. Zuckerman and was sold to the National Journal Group in 1999.
(born March 11, 1936, Trenton, N.J., U.S.) U.S. jurist. He studied at Georgetown University and Harvard Law School, where he edited its law review. Successively, he worked for a Cleveland law firm (196167), taught at the University of Virginia (196774), served as an assistant U.S. attorney general (197477), and taught at the University of Chicago (197782). He was appointed by Pres. Ronald Reagan to the U.S. Court of Appeals (1982) and then to the Supreme Court of the United States (1986). Among the court's most outspoken justices, he quickly earned a reputation for aggressive oral argument and scathingly critical written opinions, especially when expressing dissenting views. An opponent of judicial activism, he favoured a restrained judiciary, deference to the original intent of the framers in constitutional interpretation, and a limited role for the federal government.
Final court of appeal in the U.S. judicial system and final interpreter of the Constitution of the United States. The Supreme Court was created by the Constitutional Convention of 1787 as the head of a federal court system, though it was not formally established until Congress passed the Judiciary Act in 1789. It was granted authority to act in cases arising under the Constitution, laws, or treaties of the U.S.; in controversies to which the U.S. is a party; in controversies between states or between citizens of different states; in cases of admiralty and maritime jurisdiction; and in cases affecting ambassadors or other ministers or consuls. Its size, which is set by Congress, varied between 6 and 10 members before being set at 9 in 1869. Justices are appointed by the president but must be confirmed by the Senate. The court has exercised the power of judicial review since 1803, when it first declared part of a law unconstitutional in Marbury v. Madison, though the power is not explicitly granted to it by the Constitution. Though the court can sometimes serve as a trial court through its original jurisdiction, relatively few cases reach the court in this manner; most cases arise by appeal or by certiorari. Among the most important doctrinal sources used by the Supreme Court have been the commerce, due-process, and equal-protection clauses of the Constitution. It also has often ruled on controversies involving civil liberties (seecivil liberty), including freedom of speech and the right of privacy. Much of its work consists of clarifying, refining, and testing the Constitution's philosophic ideals and translating them into working principles.
I totally agree that decentralisation is key to political and economic freedom. This is an excellent statement.
I personally think that societies world-over need to mostly decentralise into small units , maybe 5,000 pop each. Technology can drive this evolution now more than ever, and the response from the power-that-be seems to have been a ruthless precautionary retaliation to force even more centralisation; geographical centralisation in particlular.
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Watch Antonin Scalia in Conversation with James Duff
DUFF: Good Morning.SCALIA: Saying good morning to me or these people?DUFF: Good morning to you, Justice Scalia.SCALIA: Good morning to you to, Jim.DUFF: Thank you so much for being here. I know it's a busy time for you at thebeginning of the new court term.SCALIA: Right.DUFF: And we're most appreciative of you taking time to visit with us in thisforum.I'll start with a question about the nature of the court system generally in theUnited States. And it was about 175 years ago that Alexis de Tocqueville observedin "Democracy in America" that there is hardly a political question in the UnitedStates which does not sooner or later turn into a judicial one.Is that a fair observation? Is it applicable still today?SCALIA: Oh, it's a good line. I don't think it's -- I don't think it's true, and Idon't -- I don't even think Tocqueville thought it was true because he had a wholechapter on -- on the courts in America, which even at that time were a peculiarphenomenon, the degree of power that American courts had. And he tried to explainhow this was compatible with democracy.And one of the reasons he found why it was compatible is that there are somecontroversies that are not justiciable. We have a doctrine of standing. And hesaid there are just some things that will never get to the courts because the courtscannot deal with them.And that has remained true today. For example, certainly whether there should befederal expenditures for this or that is a political question, but unless you'reharmed by the expenditure -- and you're not harmed if you're just a taxpayer,because, you know, the argument is, "I would have wasted the money some other wayanyhow" -- you have no standing to challenge it.So it's a good line, but it's not true.It is true that we're probably more litigious than most societies. And we have opencourts, and you can always come in and try. But it's not true that we stick ournose into everything.DUFF: I think that's a -- that is a fair observation. The courts don't seek outthese cases, they come to the courts. But we do find that many political questionsand issues -- ranging from immigration to health care -- are finding their way intothe court system.Is that a good thing? Is it -- does it distinguish us from other forms ofgovernment?SCALIA: Well, it did up until the end of World War II. Now -- now other countriesthat used to mock our system of judicial review -- the French used to call it,contemptuously, "le gouvernement des juges," government by the judges, they have nowadopted our system.And most European constitutions provide for judicial review of legislative action tocomply with human rights guarantees, the equivalent of our Bill of Rights. Sothey're sort of in the same soup as we are.No, I don't think our framers thought it was a good thing, and we think it's a goodthing. If you -- if you have a constitution that is law and if the object of courtsis to apply the law, you know it follows that the courts have to review theconformity of legislation with what the constitution requires. And that's a goodthing.And it usually isn't the entire legislation that is -- that is up for grabs, it'swhether this particular provision comports with the constitution or what does thisparticular provision mean?DUFF: Right.SCALIA: Is it -- is it proper for the executive to apply it in this fashion? Iguess you could call that a political question, you know, whether the EPA canregulate this or that, but it's essentially whether the executive is complying withwhat the statute provides.DUFF: Right.SCALIA: And that's good.DUFF: Have you seen in your experience over the years on the bench a decline in theclarity of statutes that is coming out of Congress? Has there been a consistencythere? Is there a difference in the clarity these days?SCALIA: I'd rather put it that I haven't seen any improvement.(LAUGHTER)It's always been a problem and remains that.People are sometimes surprised at how our case -- case load has gone down over thelast decade or so. We're doing a little more than half of the cases that we used todo when I -- when I first came on the court -- which is not all bad. I think wewere doing too many. I don't think we can do 150 well.But I think the main reason it went down is not that we decided to take fewer, butthere are fewer major statutes. I mean when I first came on the court there was thebankruptcy code, there was ERISA, there was a lot of major new legislation.And the main business of my court, believe it or not, you read about the pizzazzyconstitutional cases in the newspapers, but most of it is just figuring out whatlegislation means. And it takes about a decade to get all the kinks out of a newpiece of major legislation. So that's why we used to have a lot more cases.DUFF: You've not been a particular fan of looking to legislative history todetermine the meaning of a statute. Why is that, and does it -- is there anyconceivable way that legislative history could become more reliable?SCALIA: Well, first of all, let's be clear what you mean by legislative history. Iwill take account of what you might call statutory history, that is the statute usedto read this way, it was amended in 1994 to read this way. And why did they makethe change? It seems that they meant something different. Yeah, I will takeaccount of that.What I won't take account of is statements on the floor, including statements by thebill's sponsor, committee reports by the committee that reported out the bill,statements in hearings before the committee that reported it out. None of that isproper for me to consider, because the Constitution says that the manner in whichlegislation is enacted is it has to be approved by both houses of Congress andsigned by the president or passed by two-thirds over his veto. None of thesestatements pass that test.Congress cannot delegate to one of its committees the meaning of its statutes.Congress says what it says, and my job is to, you know, figure out what the meaningof what it enacted is. I don't care, I frankly don't care what they thought itmeant.(LAUGHTER)I mean, you know, even -- even if you believe that legislative history would tellyou what they thought it meant, and it can't possibly, it can at most tell you whatone committee thought. Although, not even that. I mean, you know, the committeereports are never voted on by the committee. They're put together by staff. Acommittee member can't object to this at a vote.So the most it'll tell you is what that committee thought, what one individualmember thought.I guess the theory is that, well, everybody else heard him say that on the floor andthey must have voted with that -- with that in mind. But you know that's fictional.If you've ever been on the Hill there's nobody out there when he said that.(LAUGHTER)In fact, he might have put it in afterwards, as you know, extended remarks orsomething.So it is a great fiction, just a great fiction. Its major attraction is it's sotempting, you know, here is the answer to the very detailed question: What is themeaning of Section 323b2i (ph)? Nobody has thought about that. But here's somebodywho on the floor of Congress says what it meant.How tempting it is to, you know, say, "Oh, wow, you know, let's move on to the nextcase." But in fact it does not display what the -- what the intent of Congress was.And as I say, even if it did, we're a government of laws not of -- not ofunexpressed intent.DUFF: How do you differentiate between that and looking to the Constitution aswritten and the intent of the framers? You've been critical of the phrase "livingConstitution," as recently I think as yesterday at a Senate hearing you expressed adesire to see the notion or the concept of a living Constitution die. How do youdifferentiate between the meaning of the framers as to the meaning of theConstitution and the present day?SCALIA: Well, I don't because I don't look to the intent of the framers. I don'tcare if they had some secret intent. Once again I look to the words of theConstitution. What I ask, "What did those words mean to the society that adoptedthem?"And so I will use -- I will use the Federalist Papers, the writings of Madison,Hamilton, and Jay but I won't use it because they were the drafters of theConstitution, Jay was not one of the drafters, but those papers do show what thosewords meant to the society that adopted them. And that's the same thing I do withlegislation, what do those words mean? What's the fair understanding of them? Andonce I find that that's my answer and that understanding does not change.So, for example whether the death penalty is proscribed by the Eighth Amendmentwhich prohibits cruel and unusual punishments. Death penalty may be a very badidea, but no -- no American ever voted to adopt a constitutional provision thateliminated it, that eliminated that as an option.So, you know, I -- now the living constitutionalists will say times have changed andit's up to me to decide what cruel and unusual punishment is. That's a Constitutionthat has no bite. If the Constitution means whatever we would like it to meantoday, why have a Constitution? You don't need one for that all you need is alegislature. They'll express the -- in fact they will express the current attitudeof society much better than my court will. We don't know what's going on out there.(LAUGHTER)DUFF: When attempting to apply certain clauses of the Constitution to newtechnologies for example, the First Amendment's application to sound trucks, you'vedescribed it as following the trajectory of a right in the Constitution. How do youdifferentiate that from a living Constitution, or one that is adaptable to modernissues in current times?SCALIA: Well, I'm a -- an enduring Constitution, which is what I favor, is not onthat cannot be applied to new situations, of course it can. You apply the FirstAmendment to radio, what you ask is, "What did the First Amendment mean as appliedto these other phenomena?"And what I mean by following the trajectory is then -- then you say, "Well, whataught it mean given that as the base line, what aught it to mean as applied toradio?" Whereas a living constitutionalist will say, "you know what's a good ideatoday? What the American people like today?" So, for example, oh gee I probablyshouldn't use this example in this place, but New York Times versus Sullivan, okay,the famous Supreme Court case which -- which held that a -- a you can liable publicfigures without liability so long as you are relying on some statement from areliable source, whether it's true or not. Now the old liable law used to be you'reresponsible, you say something false that harms somebody's reputation, we don't careif it was told to you by nine bishops, you are liable.New York Times versus Sullivan just cast that aside because the court thought inmodern society it'd be a good idea if the press could say a lot of stuff aboutpublic figures without having to worry. And that maybe correct, that maybe rightbut if it was right it should have been adopted by the people. It should have beendebated in the New York legislature and the New York legislature could have said yeswe're going to change our liable law.But the living constitutionalists on the Supreme Court, the Warren Court, simplydecided on yes it used to be that, you know, that George Washington could suesomebody that libeled him, but we don't think that's a good idea any more.So, that's the difference between my approach and the living Constitution approach.I will be guided as to what the Constitution means today by what it meant when itwas adopted. The living constitutionalist feels free to say, "Well you know it's anew it's a new day and we can have new rules. "DUFF: We've heard in this forum in a couple of --SCALIA: I feel bad about using that I should have thought about it--(LAUGHTER)SCALIA: It's a fine example.(LAUGHTER)DUFF: We've heard over the past day and again this morning a phrase that has becomepopular I think among political observers that in the current political climate thatWashington has become dysfunctional, and by that I think they are referringgenerally to the political -- the more political branches; the legislature and theexecutive. In my experience within the judicial branch, I've really never heard thejudiciary described as dysfunctional.It works well, there's certainly an abundance of cases in some courts are very muchover worked and we need additional resources from Congress in that regard, butthere's an underlining, I think, underlining civility in the court system. How doyour account for that and is it something -- do you agree with that observation and,if so, is there anything that could be taken from that by the other branches inperhaps lowering the temperature of the discourse in the country at the moment?SCALIA: Well, I, you mentioned my remarks yesterday I -- Justice Breyer and I spoketo the Senate Judiciary Committee. In my opening remarks one of the things Iaddressed was what it is precisely that makes America the freest country in theworld, which it is. And I pointed out that most people think it's the Bill ofRights, it's not the Bill of Rights, everybody has a bill of rights, every ten horndictator has a Bill of Rights.(LAUGHTER)SCALIA: That's not what does it, what does it is what I call the real Constitution,if you think about the word "constitution" it doesn't mean a Bill of Rights it meansstructure, structure. And the reason the Bill of Rights of these other countries,the Soviet Union had a wonderful Bill of Rights, it was worthless because the realConstitution of the Soviet union -- did not-- did not permit -- did not forbidcentralization of power in on person or in one party.Now, when you have that centralization the Bill of Rights can be disregarded, can beignored it's just words on paper. What makes us different is that we have astructure that decentralizes. It pits, as our framers said, ambition againstambition. Now one of the consequences of that is that sometimes they don't agree.You have different centers of power. Most nations in the world don't have that;most nations do not have a genuine bi-cabinet legislature. Most nations do not havea separately elected Chief Executive.When I go to Europe to talk about separation of powers, what I end up talking aboutis simply an independent judiciary, because the Europeans don't try to separate thetwo political powers; the legislature and the executive. The Chief Executive is thecreature of the legislature.Now when you have our system that disperses power, yeah, you have the two houses ofCongress, they sometimes disagree and sometimes they're in the hands of differentparties, you have a president with a veto power. You know yeah it looks likegridlock and that's what the Europeans say it is grid -- it's what has saved us.It is precisely the difficulty of enacting legislation that the framers thoughtwould be the principle protection for minorities. If -- if --if this legislation isreally going to come down on your minority, it doesn't take much to throw a monkeywrench into the system. So, you know, yeah I guess there's such a thing as goingtoo far, but I am not one of those who out of the box complains about gridlock.Gridlock is what our system was designed for.Now, you say people don't complain about gridlock in the Supreme Court that maybebecause we have to act. I mean we can't just say, "Eh, you know, we haven't decidedabout this case so go away. " No, I mean sooner -- sooner or later we got to voteand there -- and there it is.Congress doesn't have to do that. So, I think that's the principle reason peopledon't accuse us of gridlock they accuse us of a lot of other stuff, but we decidecases.DUFF: Well, Justice Scalia this has been a delightful morning with you. I knowyour beginning the new term and I know how busy you are I regret we only have twentyminutes with you this morning. It would be great to continue this but I'm beingtold in this little ear phone --SCALIA: I see somebody waving at you back there.(LAUGHTER)DUFF: But this, we are most appreciative of your time and thank you forparticipating.SCALIA: I'm glad to be here.(APPLAUSE)END