The Good Old Days

Justice Scalia recently addressed students at Claremont McKenna College on his judicial philosophy of originalism. He explained that originalists interpret the Constitution according to the meaning it bore when it was penned.

“Originalism used to be orthodoxy,” he said. “Nobody said in the old days, ‘Oh, the Constitution changes.’ The Court was a rock to which the society was anchored. Today’s Supreme Court has gone beyond its charter. We have a court that is avowedly rewriting the Constitution from year to year. It’s an evolving Constitution, and what it means is up to the Supreme Court.”

The “nauseating” confirmation process that exists today is the direct consequence of treating the Constitution as a living document. Now senators interrogate nominees extensively on personal philosophy and issues, because such are likely to be reflected in their decisions. Before judicial activism became an issue, ideology had minimal relevance.

“(When) I was confirmed 20 years ago, I was as nasty a conservative then as I am now, and I was confirmed 98-0," Scalia said. "I couldn't get six votes today.”