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Justices Get Candid About The Constitution

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Justices Get Candid About The Constitution


Justices Get Candid About The Constitution

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AUDIE CORNISH, host: This is WEEKEND EDITION from NPR News. I'm Audie Cornish.

The Supreme Court opened its session this past week, with a docket packed with philosophical questions: church and state, workplace rights, art and music in the public domain. These are just a few of the issues before the Court this term.

And then there's the granddaddy of all legal debates: how to interpret the U.S. Constitution. In a rare moment this past week, two Supreme Court justices, from opposites sides of this philosophical debate, appeared before a Senate committee.

And NPR's Andrea Seabrook filed this report.

ANDREA SEABROOK: Justice Antonin Scalia is a staunch conservative, what he calls an originalist. He believes judges should determine the framers' original intent in the words of the Constitution and hew strictly to it. Justice Stephen Breyer is often called a liberal or a pragmatist. He believes in what he calls the living Constitution, the idea that the values outlined by the framers must be molded to apply to our modern society.

The two are legal opposites, but by no means opponents. That became clear as they testified before the Senate Judiciary Committee this week. For one thing, says Breyer, every judge in every case has the same challenge.

Justice STEPHEN BREYER: The hardest problem in real cases is that the words life, liberty or property do not explain themselves. Nor does the freedom of speech say specifically what counts as the freedom of speech.

SEABROOK: Especially in this new century, Breyer says, the freedom of speech and the right to privacy are constantly shifting, as modern forms of communication flourish. So what Breyer does is search for the underlying values in the Constitution - ancient values, he calls them.

BREYER: And trying to apply this Constitution, with those values underlying the words, to circumstances that are continuously changing, is not something that can be done by a computer. Neither of us thinks that. No one thinks that. And therefore it calls for human judgment.

SEABROOK: That's the idea of the living Constitution, this set of ancient values that grows and stays relevant through time. It's an idea that makes the guy sitting next to Breyer, Justice Scalia, really uncomfortable.

Justice ANTONIN SCALIA: I have no problem with applying ancient values, as they were understood at the time, to new modern circumstances. Originalism doesn't mean that the radio is not covered by the First Amendment. But what originalism suggests is that as to those phenomena that existed at the time, the understanding of the society as to what the Constitution prohibited at that time, subsists.

SEABROOK: What he does, says Scalia, is figure out how the framers themselves understood the rights they outlined, and then carry those forward to today. Anything beyond that, he says, would be drafting new rights into the Constitution.

SCALIA: I don't trust myself to be a good interpreter of what modern American values are. I have very little contact with the American people, I'm sorry to say. You do, and the members of the House probably even more. So if you want to keep the Constitution up to date with current American values, you ought to decide what it means and you can, you know, kiss us goodbye.

SEABROOK: At this point, Breyer actually helps Scalia make an argument, saying that his conservative friend is worried that Breyer will end up substituting what he thinks is right for what the Constitution actually says.

BREYER: And what I say is, yes. You are right about that and all I can do is be on my guard, write my opinions, try to look to objective circumstances. And I see the opposite danger. The opposite danger is called rigidity. The opposite danger is interpreting those words in a way that they will no longer work for a country of 308 million Americans who are living in the 21st century, work in a way those framers would have wanted them to work had they been able to understand our society.

SEABROOK: Then in a moment of remarkable collegiality, the liberal justice prompts Scalia to make an argument Breyer knows will trump what he just said. It's a joke, he says, and he leans over to Scalia's ear and whispers, "the one about the bear."


SCALIA: About the bear?

BREYER: Yeah, the bear.

SCALIA: What bear?

BREYER: He can't remember his joke. This is what the joke is.


BREYER: See, every time I think I've got very good arguments here, what he says, well, it's like the two hunters.

SCALIA: Oh. Oh, OK. I'll tell it. You won't tell it right.


SEABROOK: Two old friends are camping, says Scalia, when a great big grizzly bear comes after them. The slower, pudgier friend says...

SCALIA: It's no use, we're never going to outrun that bear. And the guy who's running in front says, I don't have to outrun the bear. I just have to outrun you.


SCALIA: It's the same thing with originalism - I just have to show it's better than his.


SEABROOK: It was clear - these two justices have debated this hundreds of times. This week's argument just happened to take place before a group of powerful senators. Because of that, the session became a kind of master class in the philosophy of law and the art of comity.

Andrea Seabrook, NPR News, Washington.

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