Scalia talks church and state at UVA
Thirty-seven years after he last stood in front of a UVA Law School class as a professor, U.S. Supreme Court Justice Antonin Scalia returned to the school to deliver a lecture on the topic of Thomas Jefferson's concept of a "wall of separation" between church and state.
In relating his legal philosophy on the matter– well known to the 400 students and faculty in attendance and the 100 or so outside Caplin Auditorium who couldn't get in– Scalia said he didn't believe Jefferson intended government to "favor or disfavor religion, nor banish it from the public forum." Nor does Scalia believe his view is as far from Jefferson's as some scholars have argued. "I have been a centrist jurist," he said, before adding with a smirk, "at least, by my standards."
Over the next 30 minutes, the 21-year veteran of the nation's highest court explained that while the text of the Constitution is most important in deciding any case, second-most important is what Scalia called "accepted constitutional tradition," such as allowing the mint to put "In God We Trust" on currency, or allowing a prayer to open a legislative session, rather than "constitutional rules" set forth by Supreme Court rulings.
"Historical understandings are the raw data from which our theory of law is derived," he explained, "just as physical understandings are the raw data from which our laws of physics are derived."
Scalia cited several cases he has heard before the Supreme Court in which he believed it was incorrect to strike down long-standing practices in order to adhere to a previous Supreme Court ruling that didn't line up with those practices. "I don't know why we do this," he said. "Maybe it makes us confident in our image of ourselves as an extremely liberal society," a point he emphasized by beating his chest, to the laughter of all.
Then to put a finer point on it, he concluded by referencing Robert F. Kennedy's famous quote, "Some men see things as they are and ask, 'why?' I see things that never were and ask 'why not?'"
"This was a knockoff of a line from a play of George Bernard Shaw: 'Some men see things as they are and say why, I see things that never were and say why not,'" said Scalia. "But, Shaw had the good sense to know it is a tempting, but not necessarily a good guide, because, you see, the lines were spoken by a serpent to a woman named Eve."
Students and faculty grilled Scalia on his stance in a question-and-answer session following the lecture. One audience member asked how his view would square with the ruling in Brown v. Board of Education, which declared racial segregation unconstitutional. "Riding in a separate rail car because you're black, that was bad," said Scalia, "but if you go back to the text, you would find that it's unconstitutional, too."
Still, he argued against the idea that judges should base their opinions on moral right and wrong rather than interpreting the text of the law itself, stating that the democratic process makes corrections like ending segregation. However, Scalia did concede that, "If you're a king, you can do some really good stuff. If you still had what's-his-name in Iraq, you could get those warring groups together right away."
Known for his biting sense of humor almost as much as for his originalist jurisprudence, Scalia did put one student in his place for taking his text-based approach to the Constitution too literally. When asked how he could explain constitutional references to the president being a "he" when Sen. Hillary Clinton (D-NY) is now a viable candidate to win the White House, Scalia said simply, "Give me a break."
Scalia is in Charlottesville, a town from which the justice said, "my wife has never forgiven me for moving," to accept the Thomas Jefferson Foundation Medal in Law. He will address a Constitutional Law class and accept the award in a small ceremony at the Rotunda on Saturday.