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Saith Scalia

In Memphis, the Supreme Court's leading conservative makes the case for judicial literalism.

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"Gridlock," as applied to the American system of government, is a favored term of rebuke, both domestically and on the lips of foreigners. Justice Antonin Scalia of the U.S. Supreme Court pronounces it with a tone of mocking and somewhat epicene self-righteousness: "Grid-lock."

The justice, who mounts an owl-like visage on a linebacker's frame, harrumphs his response: "Gridlock is what the Constitution is designed for!"

Scalia, the high court's reigning conservative eminence, was the guest of the University of Memphis' Cecil C. Humphreys School of Law on Monday.

At a luncheon at the Peabody and in later remarks to students at the school, he made it clear that the Constitution's provisions for separation of powers are what gives American democracy its saving uniqueness — its "structure." And this structure, Scalia said emphatically, is to be found not in the Bill of Rights but in the original frame of the Constitution — that which allows for two contending legislative chambers, an executive with separately derived authority, and an independent judiciary.

This basic structure "prevents the concentration of power in one person, in one party," Scalia said at the luncheon. "All the rest is words on paper."

Concepts like freedom of speech and freedom of the press were to be admired, but they were derived from the unchanging "structure" — always that word — of the original Constitution.

"Every banana republic, every president-for-life could boast a bill of rights," Scalia said at the luncheon. "The former Evil Empire, the Union of Soviet Socialist Republics, had a wonderful bill of rights." It is the "distribution of power" which is the genius of the American system, he said. Again: "Gridlock is what the system is designed for, so that only good legislation can get passed."

Speaking to the law students, Scalia reemphasized these points, and he defended his point of view as an "originalist," i.e., a jurist who believes that the Constitution must be interpreted strictly according to the original meanings that the drafters of it had in mind.

"It is my favorite subject," he said, "this question of 'When did you first become an originalist?'" Conscious of his reputation as an ogre in liberal circles, he paraphrased the question as "When did you first start eating human flesh?" He then repeated his impression of Europeans fretting over "grid-lock" and used the same mocking intonation to represent the view of his liberal colleagues in a "living Constitution," a 233-year-old "living organism."

Scalia said: "If you believe that, you'll believe your stockbroker!" Au contraire, he said, the Constitution is a "legal document" — a static thing, no more changeable than a play by Shakespeare with its meanings fixed in the same way.

The instrument of American democracy that is ideally suited to measure and reflect evolutionary changes in the nation's views is not the judiciary, Scalia said, but the Congress — specifically, the House of Representatives, which can best gauge the "pulse" of the national mood.

From his point of view, issues before the Supreme Court were not matters of liberal vs. conservative; rather, the issue was one of simple textual literalism. He recounted several cases on which he was the fifth and deciding vote — notably one nullifying flag-burning statutes. If it was up to him, he said, he might "throw flag-burners in jail." But the Constitution, as he read it, guaranteed that form of free expression.

At both his Memphis venues, Scalia displayed an easy, somewhat sardonic sense of humor. During the Q&A session at the Peabody, an audience member used his time to bestow compliments on the justice. After hearing him out patiently, Scalia observed, "That wasn't a very good question." And asked by a student if he had read a tome by liberal justice Stephen Breyer, Active Liberty, Scalia said wryly, "I've scanned his book."

Summing up his visit, the justice characterized his mission this way: "I go around to law schools just to make trouble."

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