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Scalia and Breyer debate Constitution in Arizona

By Howard Fischer

Phoenix, AZ – Two U-S Supreme Court justices from opposite sides of the
political spectrum came to Tucson Monday to share their views on
the Constitution.

Antonin Scalia and Stephen Breyer have found themselves on
opposite sides of a variety of issues in cases before the high
court. Many of these involve how to interpret the Constitution.
Scalia labels himself an originalist, looking at the plain
language in the context of the writers. By contrast, he told an
audience at the University of Arizona College of Law that many of
those on the other side take an evolutionary approach, seeking to
try to reconcile those words with current values.

"The fight is about the Supreme Court inventing new rights that
nobody ever thought existed, with respect to old phenomenon, the
death penalty, sodomy, abortion, suicide."

Scalia said that type of approach creates no absolutes. And that,
he said, flies in the face of what the constitution was meant to
do -- be an exception to the fundamental principle of democracy
that majority rules. He said the constitution was enacted by
Americans as a specific -constraint on government even when the
majority may believe otherwise. And the views of those who
drafted it and the amendments have to be honored.

"And when they voted against cruel and unusual punishment, they
never voted for abolition of the death penalty. When they voted
for equal protection of the laws in ratifying that provision of
the Constitution, they never voted for same-sex marriage."

But Breyer said it's necessary to go beyond the pure words and
the way those in the 18th or 19th century viewed the world. He
pointed to the 14th amendment designed to provide equal
protection under the law to all, including former slaves. He said
the purpose was to bring everyone into society. Yet there still
were segregated schools, which the courts upheld on the principle
of separate but equal.

"They tried the separate but equal thing and it didn't work. So
they led to total segregation. So the basicl value underlying the
14th amendment is a value that says no segregated school. If that
wasn't clear in 1880 it was certainly clear by 1954."

And Breyer said the court can't simply look at the constitution
based on what was allowed at the time of its adoption. He cited
the Eighth Amendment which prohibits cruel and unusual

"Maybe they thought that flogging was fine. You used to flog
people on ships. I don't know the exact details of what everybody
in the 18th century thought was cruel and unusual. But they
didn't enact that. They enacted into law cruel and unusual
punishment which meant a set of values, not a particular set of
18th century circumstances."

But Scalia had a warning for those who prefer a more flexible
approach based on contemporary standards. That won't always lead
to more freedoms or lesser punishments. A future court could
decide that things we think now are unacceptable are not really

"You know, they thought thumbscrews were bad. But, you know,
nowadays, what the heck. We have a more violent society.
Thumbscrews aren't so bad. Is that all that the Eighth Amendment
means -- to thine own self be true? Don't do anything that you
think is cruel? We had our own notions of cruel. But we don't
want to bind you to our notions of cruel. That can't be what it

Scalia said there is a remedy for those who want different or
broader rights than the constitution spells out: Go to your
lawmakers and tell them whether you want abortion or homosexual
activities to be legal.