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Justice engages UNLV law students in feisty debate over constitutional law

Scalia talks about Citizens United, Roe v. Wade, other controversial decisions in visit


Leila Navidi

Supreme Court Justice Antonin Scalia waits to speak at the Boyd School of Law’s Thomas and Mack Moot Courtroom at UNLV in Las Vegas on Wednesday, September 5, 2012.

Updated Wednesday, Sept. 5, 2012 | 6:21 p.m.

Justice Antonin Scalia at UNLV

Supreme Court Justice Antonin Scalia speaks at the Boyd School of Law's Thomas and Mack Moot Courtroom at UNLV in Las Vegas on Wednesday, September 5, 2012. Launch slideshow »

When United States Supreme Court Justice Antonin Scalia opened the floor for questions Wednesday morning after a lecture at UNLV’s Boyd School of Law, law student Cathy Kama was prepared.

Clutching a scrap of paper with notes written on it, the bespectacled brunette asked the famously conservative jurist about the court’s controversial 2010 Citizens United decision, which loosened campaign finance laws.

“I just wonder if the court considered the negative impact it would have on democracy?” Kama asked Scalia. “And what I mean by negative impact is the flooding of money into the political process.”

Scalia, who has dressed down many a prominent attorney during oral arguments before the court, shot back jokingly — “No we don’t care about all that stuff” — before engaging Kama in an at-times heated back and forth, marked by Scalia’s trademark blend of sharp intellect and biting sarcasm.

“Of course the court considered that,” he said, before framing the decision as a free-speech issue. “The principle of the First Amendment is the more the merrier; the more speech the better. False speech will be answered by true speech. That’s what we believe and maybe it’s a stupid belief, but if it is you should amend the First Amendment.”

Scalia, who was appointed to the Supreme Court by Ronald Reagan in 1986, spoke to about 150 UNLV students and professors, making an impassioned argument for an originalist interpretation of the U.S. Constitution before fielding questions from the crowd.

He kept the audience laughing and engaged throughout, punctuating his arguments with expressive hand gestures, sarcastic remarks and eye rolls.

Scalia addressed a range of topics that included abortion, cruel and unusual punishment, women’s voting rights and the death penalty, each time tying the issue back to the original meaning of the Constitution as it was written in the late 1700s.

He argued against the notion of a “living Constitution” open to interpretation by judges and advocated for a strict reading of the document as written, with changes made through amendments.

“Americans used to understand … that the Constitution meant things, it meant things that didn’t change,” Scalia said. “If we wanted to change it, we had to do it the way the Constitution says, we adopted an amendment. … That’s not what we do anymore.”

Scalia pointed toward the fight for women’s suffrage during the early 20th century as an area where an amendment was added to effectively provide a right the Constitution previously neglected.

On abortion, Scalia argued the Constitution as written has no stance on the issue and that the court’s ruling in Roe v. Wade has stifled open discussion of the issue.

“It’s no use persuading your fellow citizens about abortion. It’s off the democratic stage, not a subject for democratic debate. Why? Because the Supreme Court has said so,” he said. “There is no reason for the Supreme Court to rewrite the Constitution, we have an amendment provision.”

During the question-and-answer session, Scalia addressed the recent high-profile Affordable Care Act and Citizens United decisions, while also discussing lighter-hearted topics, including memories from his first year at law school and which constitutional framer with whom he’d most like to have lunch. Afterwards, he took time to shake hands with members of the audience and sign copies of his new book “Reading Law: The Interpretation of Legal Texts.”

Kama said that although she’s deeply concerned about the negative effects of Citizens United and disagrees with some of Scalia’s stances, she’s glad she got the opportunity to hear the justice speak.

“It was fantastic. It’s an honor to have him come to UNLV,” she said.

Constitutional law professor Tom McAffee said he thought Scalia made a coherent argument for an originalist interpretation of the Constitution. But, McAffee said, Scalia’s rulings from the bench don’t line up with the arguments he made Wednesday.

“He’ll latch onto well established doctrine,” said McAffee, who took issue specifically with Scalia’s views on affirmative action. “It has nothing to do with the original meaning (of the Constitution).”

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  1. OpenRange "If the Constitution is not a living document, how in the heck did Scalia support the notion that corporations are people?"

    Because the Constitution does not say otherwise and because the legal concept that a corporation is a "person" predates the Constitution be a long ways.

    Corporations have been "legal entities embodied with the rights, responsibilities, and liabilities of persons" since the early 19th century.

    The Supreme Court had already ruled in 1844 (Louisville, C. & C.R. Co. v. Letson) that a corporation is "capable of being treated as a citizen of [the State which created it], as much as a natural person."

    Of course for all of those who don't like the Citizens United decision, think about what it would mean if corporations weren't treated as people with the same rights and liabilities. Because if that were true then corporations could do ANYTHING they wanted without you having any recourse because the legal basis for you being able to sue a corporation relies on the concept that the corporation is a person.

  2. Steamrolling the United States Constitution to get a few laughs in disgraceful! The foundation of the United States was built on this document. Guess Scalia feels he is above the law in that aspect. Blowhard!

  3. This fat Tea Party justice is too old to pass judgement on anything. It is time to put this old bull out to pasture. The GOP and conservatives are slowly becoming the wig party. Scalia's appointment to the SCOTUS was one of many awful decisions made by one of the worst presidents in American history Ronald Reagan. If we want to progress as Americans we have to stop listening to the chicken little party and re-build our nation for all our people not just the born again christian fringe nuts. There is no room for backward looking politicians that are only looking out for themselves and their next election. If Obama wins Scalia will retire and Obama will put a woman in there and that is what the country needs.

  4. Oh I love this...."Steamrolling the United States Constitution"

    Please cite the specific clause in the Constitution that says that corporations should not be treated as "persons", despite the fact that corporations had the rights and liabilities of persons BEFORE the US Constitution was written?

    Please show us where in the Constitution they changed the normal legal definition of corporations from the one that existed at the time?

    For that matter, do a little research....Citizens United didn't CHANGE anything with regard to the legal definition of corporations. All it did was upheld over two centuries of legal precedent, including 5 previous US Supreme Court rulings. (Most critically "Louisville, C. & C.R. Co. v. Letson" [1844])

  5. williamtomany1 - "I don't agree with Supreme Court Justice Antonin Scalia's view of our Constitution"

    That's your right.

    Obviously you're not a Constitutional scholar, but I have to do you explain and reconcile the specifically spelled out process for amending the Constitution if the intent was for it to be a "living document" that can be changed and extended through judicial interpretation? Wouldn't that obviate the need for an amendment process?

  6. "Throughout, he argued against the notion of a "living Constitution" open to interpretation by judges and advocated for a strict reading of the document as written, with changes made through amendments."

    Scalia's right on with this.

    "...the legal concept that a corporation is a "person" predates the Constitution be [sic] a long ways."

    "For that matter, do a little research....Citizens United didn't CHANGE anything with regard to the legal definition of corporations."

    wendor -- you're right on with that.

    "The foundation of the United States was built on this document."

    JeniferAD -- no it isn't. That's explained by the Declaration of Independence again. The Constitution is only the social compact of We the People creating and limiting the federal government.

    "[Our] principles [are] founded on the immovable basis of equal right and reason." -- Thomas Jefferson, to James Sullivan, 1797

  7. So 'Citizens United' is "False speech will be answered by true speech."

    Scalia apparently believes that secret donors of campaign money bring 'true speech'. He also believes that campaign money from sources of self enrichment with no thought to the public health or safety bring 'true speech'.

    Less than 100 people financed 90% of the Republican Primary and Scalia says they speak more truth than 50 million Americans?

    Scalia's unfortunate ideology has no connection to voting reality or history. He refuses to see that the results of Citizen's decisions creates Oligarchys and that offshore money sources can now dominate State and local elections. Twisted and unconnected ideology is a hallmark of Scalia's thinking.

  8. Scalia says Corporations are People - so why don't people get to carry their losses forward into future years? Why do corporations have tax loopholes and tax shelters that people don't?

    It's because Corporations are People when it comes time to receive but not to pay. Again, Scalia ignores reality and law to defend his ideology.

  9. So Scalia is an Originalist when it suits his purpose and the he's an Eatablishe principle jurist when it suits his purpose. Well, well, how convenient.

  10. Mainly Scalia is juvenile and unworthy of being a supreme court justice.

  11. Chandler_L -- what's "an Eatablishe principle jurist"?

    "Mainly Scalia is juvenile and unworthy of being a supreme court justice."

    mschaffer -- kind of like your post. Seriously, if you think Scalia's bad, you should have been around when Rehnquist was past the point when he should have retired. Like when he tried to get a gathering of southern minority lawyers to sing "Dixie" with him.

    "The people should not be deceived ... a major, undemocratic restructuring of our national institutions and mores is constantly in progress." -- Justice Scalia dissenting in Board of County Commissioners, Wabaunsee County, Kansas v. Umbehr, 518 U.S. 668, 709-10 (1996)

  12. So SunJon, you're basically arguing that Constitutionally guaranteed freedom of speech should only apply to areas/topics/political ideals that you agree with and no to those you oppose.

    Just because someone can "shot louder" then you (spend more money) doesn't mean that you get to take away their rights. It's freedom of opportunity, not a guarantee of equal outcome.

    But as Scalia said, if you have enough people that agree with you....then go ahead and amend the Constitution. That's his point. If you think some part of the Constitution, as written, causes more harm than good, then use the Constitutionally prescribed process to amend it.

    Don't whine about it, don't moan about hot "it should be different", and don't insist that the solution is to conditionally ignore what it says. If you think it's broken....then FIX IT. There's a reason that the amendment process is in there.

  13. wendor - you don't understand English very well.

    Citizens United allows the wealthiest group to buy up most or all of the air time in local areas and thus prevents 'equal protection' as interpreted from the Constitution. The source of the money can also remain secret. Citizen's United claims that money determines who speaks and how much and also hides their identities. This is not only subversion but aristocratic behavior, not a democracy.

    John Roberts saw Citizens United coming and, being financed by the Koch Brothers, knew that this case could be used to bring a pre-determined decision into law. This was an inside job planned in the back room, not an exercise in Constitutional law.

    You (and others) claim that if the Constitution does not prohibit an act, then it is Constitutional or given to States to enact their own interpretations.

    This too is immensely incorrect because the original Constitution allowed slavery and did not give women the right to vote. States and individual corporations are not allowed to decide whether or not they will allow slavery but that took a war, not a judicial decision.

    Citizen's United is at odds with equal protection of the right to speak, regardless of wealth and is clearly Unconstitutional. Unfortunately, that has been upended by little street car pizza vendors and bar tenders who accidentally got appointed to the Supreme Court for their political leanings.

  14. I think wendor and Justice Scalie have confused the attitudes of the late 19th Century towards corporations with the attitudes of the Founders a hundred years earlier.

    It is pretty clear from the documents of the Founders time -- and the Founders' actions -- that the founders, if asked, would have seen a clear difference between the inalienable rights granted by the Creator to humans and the very restricted rights granted to corporations by state legislatures for limited times and limited purposes.

    The real questions are: (1) do we see the difference? (2) what are we going to do about it?

  15. Sorry Leric, but that difference in attitudes is based on your imagination, not on history.

    Corporations ("public companies") being treated as having the rights and liabilities of persons was already well established in the English common law in use long before this country was founded.

    Do some research. Learn some history.

  16. SinJon "This too is immensely incorrect because the original Constitution allowed slavery and did not give women the right to vote. States and individual corporations are not allowed to decide whether or not they will allow slavery but that took a war, not a judicial decision."

    No, in both cases it took Amendments to the Constitution. Both slavery and a male-only vote WERE Constitutional...right up until Amendments were passed changing those things. Just as Justice Scalia said (and so did I)

    But you're also off in your understanding. You say "States and individual corporations are not allowed to decide whether or not they will allow slavery..." which shows that you really don't know your US history very well. Long before the Civil War or the 13th Amendment, several states prohibited slavery. States had the right to allow slavery or not...right up until the ratification of the 13th Amendment. At that point they no longer had the option because the Constitution had been amended to specifically prohibit slavery.

    You then whine about "equal protection of the right to speak, regardless of wealth". Sorry, but there is not now nor ever has been any such protection. You're insisting on equality of outcome, not equality of opportunity...and that's not what the document says.

  17. OK, Wendor, a little actual history instead of fantasy:

    If you actually look at the States, you will find that until the mid-19th century, they did not have general corporation laws. Each corporation was formed by a special act of the state legislature, with special powers, and usually a limited life. Early corporations were mostly towns and civic organizations. Even where and when general corporation laws were enacted, little use was made of them. After the Civil War, things changed. That is the first time corporations were held to have "rights".

    When the Constitution begins: "We the people...", the Founders did not mean -- and did not intend it to mean -- "We the people, including corporations..." To interpret it as such mocks the basic concepts of judicial interpretation, and threatens both liberty and good governance.

  18. Leric, what part of BEFORE the United States are you missing?

    You say that you are interested in what the "attitudes of the Founders" were towards corporations at the time.

    For that you need to look at the law they operated under, which was English common law. For over 200 years (since the 1500's) English common law authorized the creation of "public companies" (what we now call corporations) which were distinct from sole proprietorships in that there were multiple owners, each operating under limited liability (since the law did not allow each owner to be held responsible for the acts of the others, nor could it always be clearly shown which owner was responsible for the actions of the company). This presented a challenge with regards to liability on the part of the company. Since English common law only allowed for redress against persons, the solution was that the company was treated as a "person" under the law. This meant that the company could be held liable in court for redress of grievances, but it also meant that the company was granted the rights of a person as well, such as petitioning for redress on its behalf.

    THAT was the system that the Founders were part of during the birth of this nation. "Public companies" already were treated as "persons" with the requisite rights and liabilities.

    Like I said...go forth and LEARN some history.

    You seem very foolish when you say things like "After the Civil War, things changed. That is the first time corporations were held to have "rights"." when the reality is that "public companies" were held to have those rights under English common law for almost 300 years prior to that.

    My guess is that you need to stop using Wikipedia as your source for "history" as well as improving your reading comprehension since "after the Civil War" would have been the first time the US Supreme Court ruled on the issue, not the first time that the legal precedent was established.

    For example, you could start your education with the legal status, standing, rights, and liabilities of the East India Company under the charters of 1600, 1609, and 1657. You will see that "The Company" had "the rights and privileges" of a subject to the crown including "petition to the crown". In other words....a person.