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Justice Antonin Scalia: The Case for a 'Dead Constitution'

BY BRIAN WHITSON, W&M NEWS

As a staunch conservative, U.S. Supreme Court Justice Antonin Scalia says he doesn't carry any deep affection for "bearded, sandal-wearing weirdos" who choose to express their First Amendment rights by burning the American flag.

However, as an originalist -- one who interprets the U.S. Constitution based on the meaning it held when it was originally adopted more than 200 years ago -- burning the American flag is a protected right, Scalia told more than 1,200 people at William and Mary Hall.

"It's protected by the First Amendment," said Scalia, explaining why he joined the high court's majority in the opinion that flag burning is a protected form of political expression. "If you play the old way, you often have to reach decisions you don't enjoy."

In a lively and entertaining talk sponsored by the College's University Centers Activities Board, Scalia answered questions ranging from the debate on same-sex marriages to the balancing act of being a Supreme Court Justice and father of nine children.

"I have a great wife," Scalia said with regards to his family life. "I take care of the Constitution and she takes care of everything else."

On the legality of same-sex marriages, Scalia said the debate will probably end up in federal court because of the full faith and credit clause, which says that states have to acknowledge laws that other states have passed. However, Scalia said he doesn't see anything in the Constitution that addresses the issue.

"I have no idea how it will come out," Scalia said.

Scalia, who was appointed to the Supreme Court in 1986 by President Ronald Reagan, spent the majority of his speech arguing for what he refers to as a "dead Constitution."

"It's a tough sell," Scalia admitted, adding that most of his colleagues on the Supreme Court prefer to look at the Constitution as a living document that evolves as society changes. Scalia said that he and Justice Clarence Thomas are among the minority.

"We're not looking for good lawyers anymore," Scalia said of Supreme Court appointees. "What we are looking for now is people who agree with us. That is where we are."

Scalia said people believe a "living Constitution" provides more freedom. In reality, he said, it actually takes away democratic choice because it allows judges to interpret the Constitution however "they think it ought to mean."

Interpreting the Constitution, he said, "Has nothing to do with what your social preferences are. It has all to do with how you think the Constitution should be applied."

This leads to tough decisions, but decisions that are necessary in upholding the Constitution, Scalia said. He referred back to his fifth and deciding vote on the decision that states could not criminalize the burning of the American flag.

The morning after the decision, Scalia said, he came downstairs at his house and saw a Washington Post on the kitchen table. On the front page was a headline about the courts decision to protect flag burning. His wife, Maureen -- who Scalia said is more conservative than he is -- was fixing breakfast and humming "Stars and Stripes Forever."

"I don't need that," he said, triggering laughter in the crowd. "The living Constitutional judge never has to put up with that. Whatever he thinks is good, is in the Constitution."