Maybe it's not perfect, but it's better than other methods, he said at HLS.
A standing-room-only crowd in Ames Courtroom heard Associate Justice Antonin Scalia '60 of the U.S. Supreme Court deliver the inaugural Herbert W. Vaughan Lecture on Oct. 2.
In a lecture titled "Methodology of Originalism," Scalia said that while the Constitution must be applied to new phenomena unknown at the time of its framing—for example, the First Amendment's application to radio in the 1920s and to the Internet today—its underlying principles do not mutate over time. Regardless of which medium is involved, libel is unprotected speech. For that reason, Scalia said, a decision such as New York Times Co. v. Sullivan, in which the Warren Court determined that good faith libel of public figures would be "good for democracy," deviates from the Court's proper role under the Constitution.
Scalia took to task proponents of a nonoriginalist approach, whom he says improperly stray into the realm of moral philosophy. Not only are lawyers better suited to historical inquiry than to moral philosophy, "that task has become easier over time," he said, with the proliferation in the past 20 years of legal historians in the academy as well as the increasing number of historically laden amicus briefs submitted to the Court, especially in controversial cases.
In the politically divisive gun control case decided by the High Court last spring, District of Columbia v. Heller, "the mass of briefing ... was nothing short of spectacular, filling over five volumes in the Supreme Court library," Scalia said. One brief, he noted, appended 200 pages of historical data relating to the right to bear arms as it was understood at the time of the founding fathers.
In Heller, the petitioners contended that the Second Amendment's guarantee of the right to bear arms had an exclusively military connotation. "It was necessary and easy enough for the Court's originalists to show this was not so," Scalia said, by resorting to such sources contemporaneous to the framing as Blackstone's and various state constitutions, as well as the English Bill of Rights of 1689, which guaranteed a right to bear arms for personal use.
"The Court had before it all the materials needed to determine the meaning of the Second Amendment at the time it was written," he said.
"My burden as an originalist is not to show that originalism is perfect but merely to show that it beats the other available alternatives, and that is not difficult," he said.