Nino in full

by Michael O. Allen on April 9, 2008

Associate Justice Antonin Scalia hosted about 26 students from the Thomas Jefferson High School in Alexandria ( Fairfax County),Virginia at the U.S. Supreme Court on Wednesday. C-Span organized the meeting as part of its “Students and Leaders” program with sitting Supreme Court Justices.

Susan Swain of C-Span explained that TJ, as the school is known, had just been named the top high school in the nation by U.S. News & World Report.

ascalia02 I was surprised the Trenton, N.J.-born Scalia, who grew up in Queens, New York, is 72 years old. I’d thought him to be in his 50s (probably because his age, for me, was fixed at around the time he came on the court). In any case, Scalia is a father of nine and has 28 grandchildren (the session must have seemed like a normal family gathering to him).

Scalia was discursive and trenchant, if it is possible to be both at the same time, explaining, for instance, why he’s against the Court’s proceedings being televised. He talked about his upbringing and his hopes and dreams growing up. Here’s a link to the full talk, if you have RealPlayer. The most important point he addressed, to me, was on Free Speech. But before we get to that, he opened on an interesting note:

“Most of our time, I understand, would be devoted to questions but the price of admission is that I’m permitted to say a few things that I want you to know. And most of them pertain to the Constitution. You know the American people used to have a degree of veneration for that document that seems to have disappeared in recent times.

“I once receive a letter from a lady in Indiana which enclosed a copy of a letter that one of her ancestors had written to his grandson who at that time was in Georgia . The letter enclosed a copy of the constitution. It was written in about 1840. And it said to the grandson:

“My dear young man, if you would commit this to memory and repeat it to me upon your return, I will pay you the sum of $5.”

That was a lot f money in those days, 1840. That’s the kind of importance that people of prior generation placed upon the document.”

He went on to discuss the Constitution, its importance to our society compared to some of the oldest democracies in Europe. It was an engaging, very informative hour. Scalia did not condescend to the students. He mentioned Lawrence v. Texas, the 6-3 landmark ruling that in 2003 struck down sodomy laws that had criminalized homosexual sex, a number of times in a tone that left no doubt the ruling still rankled him.

The last question then fell to a student whose name I did not quite catch (I listened several times and the best I could make it to be is Kenneth Lee):

“Justice Scalia, how do you define Free Speech and has your definition evolved over time and does it have the capacity to evolve?” he asked:


Well, now it can evolve. I guess I have the capacity to admit that I made a mistake because what I look for is what was, what was considered . . . You know, the First Amendment does not guarantee Free Speech. It says: “Congress shall make no law abridging the Freedom of Speech . . .”

He seemed flustered at first but, now relishing the question, plowed on:

Ha, the definite article. What freedom of speech? That freedom of speech that was the right of Englishmen in 1791. So, I look back there and I say, you know, it doesn’t mean absolute any freedom of speech. In 1791 you couldn’t give information about troop movements to the enemy. That was treason. That speech was not permitted. You could not libel people. You would be punished in court for libeling people.

So, it was the freedom of speech that was the tradition of the Anglo Saxon law. And, no, my view on that doesn’t change because I’m not an evolutionist. I don’t believe in a ‘living Constitution’ (a well trod ground during the hour the students spent with him).

But, you know, you ought to be happy about that because I was the fifth vote, you may or may not know, in the case that held it was unconstitutional to prohibit the burning of an American Flag.

Now, in my social views, which I don’t apply from the bench, I’m a fairly conservative fella, to tell you the truth, and I don’t like people who burn the American flag and, if I were king, I would put them in jail. But I am not King and I am bound by First Amendment and my understanding of it is it gives you the right to criticize, to criticize severely, the country, the Court, the flag, and burning the flag is just a matter of communication. It’s a symbol. Just as language is a symbol. I mean, there is no communication that isn’t symbolic, right. I mean, these noises I’m making symbolize ideas.

And, when you read a paper, the markings on the paper symbolize sounds which in turn symbolize ideas. Burning a flag symbolize an idea. So, that was why I was the fifth vote and you ought to be happy about that because once I find what’s in the first Amendment, you got me. I can’t do what I would like to do.

The lesson I leave you with is, how are you going to control the judges who don’t believe in the original meaning, but who think the Constitution morphs and it means whatever it ought to mean today? You know what, they’re going to find that it ought to mean what they think it should mean, which is to say you don’t have much control over the judges.

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