On Thursday, Mar. 8, Associate Supreme Court Justice Antonin Scalia delivered a speech at Wesleyan U. as part of the 21st Hugo L. Black Lecture on Freedom of Expression. Justice Scalia’s lecture, which was entitled “The Originalist Approach to the First Amendment,” was attended by about 550 people, including students, parents, alumni, and Middletown residents. Hundreds more watched the lecture from other sites around campus through a closed-circuit video feed. His appearance on campus was met with protests organized by University students and other Connecticut activists.
The event began with President Michael Roth introducing Justice Scalia to the crowd. During his talk, Scalia argued that originalism, which advocates basing court rulings on the original intent and language of the Constitution, was the best method to determine all court cases. According to Scalia, any other form of judicial interpretation would result in a judge politicking from the bench.
“The reality is that originalism is the only game in town,” Scalia said. “The only real, verifiable criteria that prevents judges from making the constitution [say] whatever they think it should say. Show Scalia the original meaning and he is prevented from imposing his nasty conservative views upon the people. He is handcuffed.”
Justice Scalia stated that every ruling he has made as a judge has been based on the originalist approach—even when his personal politics disagreed with the ruling. He cited Texas v. Johnson, a 1989 case in which he ruled that an attempt to ban flag burning was unconstitutional, as an example of an instance when his adherence to originalism took precedence over his personal beliefs.
“The court held that it was unconstitutional to ban the burning of the flag,” Scalia said. “It was a five to four decision and I made the fifth vote. You should be in no doubt, as that patriotic conservative that I am, I detest the burning of the nation’s flag. If I were king, I would make it a crime. But as I understand the First Amendment, it guarantees the right to express contempt for the government, Congress, Supreme Court, even the nation or the nation’s flag.”
Scalia specifically argued against the concept of a living constitution, which he explained as the idea that the Constitution is an evolving document and can be interpreted based on the present state of the American people. Scalia held that any attempt to do this was undemocratic, as it allowed judges to go against the letter of the law without an amendment from the nation’s people.
“If you care passionately about [something], it’s there in the Constitution,” Scalia said. “That’s the only criteria [for a living constitutionalist]. Never mind what the people have voted to put in the Constitution, and thus removing it from the realm of democratic debate and democratic choice. Only originalists care about that. It is there if it ought to be there. I urge you not to yield to that seductive and extremely undemocratic falsehood.”
Following his speech, Scalia answered several questions form the audience. Many of these questions were about how he applied the originalist concept to political issues such as corporate personhood, gender rights, and gay marriage. Scalia remained adamant that all of his rulings were based on the original intent of the Constitution. Scalia drew laughs from the crowd over his response to a question about the Bush v. Gore decision.
“Get over it,” he said.
Prior to the lecture, approximately 40 students and members of Occupy Connecticut gathered outside the Chapel and engaged in a protest that was informally referred to as both Occupy Scalia and the Scalia Welcoming Committee. These protesters carried signs, distributed literature on Scalia to people waiting for admittance to the lecture, and chanted several different slogans, including “legacy of blood and war, what’d you make George president for,” “money is not free speech,” and “the people united will never be defeated, citizens united will be defeated.”
According to several protesters, Public Safety had announced that any protesters unaffiliated with the University could be subject to arrest. However, student protesters said that after they stated that all non-University protesters were their guests, there were no attempts to make arrests.
The protestor’s reasons for picketing varied, from those who were protesting Scalia’s policies and court rulings to others who opposed his invitation to speak at the University.
“I disagree with the way he forms opinions, pretty much all of his opinions that I’ve read,” said Alma Sanchez-Eppler. “I think that it is disrespectful to a lot of people on this campus to have brought him here because he is such a violent presence.”
She said that while she believed Scalia’s talk fit with the free speech theme of the lecture, she was unhappy that the event also gave him a platform to voice his opinions.
“It’s not that he shouldn’t be here, for a free speech address it’s perfect as I don’t think there’s anybody who exercises free speech more often than he does,” she said. “My only problem with it is that his particular form of speech holds a lot of power and a lot of sway and makes a lot of things possible that I think really go against what I hope and have always felt this country stands for.”
Though many of the protesters said they had no intention of preventing Scalia from speaking, they believed their protest was an important act for the University and protest movements across the country.
“I think that [the protest] has already done its job,” said Paul Blasenheim. “The main purpose of demonstrations like this is not to change Scalia’s mind, as his mind is not changeable. I think it’s more to demonstrate that people are not willing to stand back and allow Scalia’s presence to go unchallenged, utilizing our rights to assembly and speech. There has already been lots of media coverage of this and that builds the overall movement against everything that Scalia stands for.”
After Scalia finished his lecture, approximately five student protesters stood up in the Chapel wearing orange jumpsuits and black hoods on their heads to resemble prisoners of Guantanamo Bay. At the same time, two anti-Scalia banners were unfurled and condoms with labels stating “practice safe sodomy” and “stops more abortions than Scalia” were dropped from the Chapel balcony. Soon after this, the protesters who were dressed up as prisoners were quietly escorted out of the lecture and the banners were removed. Upon seeing these actions, Scalia continued the question and answer exchange with only a brief acknowledgment of the protests.
“Very persuasive,” he said.
Some students in attendance at the event believed that the protesters were simply expressing their different views.
“For the most part I thought they were tastefully done,” said Chris Martinson. “They allowed him to have his words, which I think is essential because it was about freedom of speech and I think it was the student’s right to do so.”
Meanwhile, others contended that the demonstrations could be seen as disrespectful to Scalia.
“I appreciated that it didn’t disrupt the flow of the speech to the Q and A,” said Victoria Rowe. “I thought having the protest inside [the chapel] was disrespectful no matter who’s speaking. I fully support wanting to protest, but I don’t think in this forum is the most appropriate time, [though] I think it was handled well in that we were able to continue without wasting time.”
Of the students who attended the lecture, many expressed interest in hearing Scalia’s argument, despite their disagreement with his judicial opinions.
“It made me think about my preferences with the way justices viewed things,” Martinson said. “ I thought it was an interesting argument, which made me think about my moral stance versus what I think the overall best result would be. It made me reappraise my position on how I view Supreme Court justice rulings.”