The Nature of Judicial Power: Hon’ble Justice Antonin G. Scalia

My Lord, Courts should interpret the Constitution as it would have been understood by ordinary, reasonable citizens alive at the time the Constitution was enacted or Courts should interpret the Constitution as a living organism, one meant to evolve to suit the changing needs and values of contemporary society?

Scalia.jpgA standing-room-only crowd of law students and faculty packed the Ames Courtroom at Harvard Law School in the fall of 2008 to hear Antonin Scalia deliver the inaugural Herbert W. Vaughan Lecture. His topic was “The Methodology of Originalism,” and it would become his new stump speech. Scalia’s various originalism speeches and law teaching stints had allowed him to travel for free, be seen by thousands of people, and earn tens of thousands of dollars beyond his salary. The only thing that varied from audience to audience was the questions following his remarks. However, even they were becoming so repetitive that the press coverage for his appearances had lessened over the years. Now this new Harvard speech would allow him to renew his public persona. Scalia used his speech to rebrand himself.”

Bruce Allen Murphy, Scalia – A Court of One, (Semon & Schuster, 2014).

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Ultimately, whether we like it or not, most of us are engaged in the politics of statutory interpretation. Originalism is the only approach to text that is compatible with democracy. Originalism is defined as the view, the Constitution should be interpreted in accordance with its original meaning – that is, the meaning it had at the time of its enactment. Law laid down by the framers in the Constitution remains binding until we legally change it, such as through the amendment process; or differently, the words in the Constitution have the same meaning over time, even if modern circumstances change, and even if we wish the words meant something else.  The Constitution is a written instrument. As such its meaning does not alter. That which it meant when adopted it means now. The Constitution is not a living organism that changes, evolves, or is self-amending. The truth is that the Judge who looks outside the Constitution always looks inside himself and nowhere else.

It is often exceedingly difficult to plumb the original understanding of an ancient text. Scalia recognized, the choice between ‘original meaning originalism’ and ‘living constitutionalism’ is a search for the lesser of two evils, like being asked to choose between two librarians: one who speaks too softly and one who speaks too loudly.

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In Sunil S. Gupta, [Writ Petition No. 1587 of 2015] it was contended before the Bom HC, in an era of information, and especially one driven by technology, Judges cannot turn a blind eye or be anaemic to change; Courts should, apart from conventional methods, allow digital video-recording of Court proceedings; allowing an argument to be filmed in addition to Judges would improve the functioning of the Judges and ensure accuracy of Court records.

We may ourselves be at some distance ideologically from Justice Scalia on any number of matters, but on this issue we find ourselves in complete accord with him. He was repeatedly asked this question. Justice Scalia’s view seems to have been based on a mistrust of the media. While we may not share that mistrust in quite the same measure, we are equally unconvinced that it is entirely without basis, and we find ourselves at some distance from a whole-hearted and unquestioning trust as well. Our judicial system is adversarial, not gladiatorial. What happens in Court on a minute-to-minute basis is often unrelated or tangential to the final result. Taken out of context, a single question, sometimes sharply worded, from the Bench is apt to be misread. The entire context and colour changes. Our attempt as Judges is to remove emotion from the judicial decision-making process. Media reportage of cases is permitted. It is one thing to afford everyone a right to come to Court. It is quite another to take that Court into everyone’s living room.”