U.S. Supreme Court Justices Antonin Scalia and Stephen Breyer drew laughs from taking a few good-natured jibes at one another, while raising thought-provoking questions about how to interpret the Constitution in an evolving society.
While Scalia insists the U.S. Constitution and Bill of Rights needs to be interpreted based solely on the words contained within the text, Breyer believes justices need to look beyond the words at such things as tradition, precedent, purpose and consequences.
The two justices, who debated before a packed crowd at the Leo Rich Theatre at the Tucson Convention Center, were brought to Tucson by the University of Arizona's William H. Rehnquist Center to discuss “Principles of Constitutional and Statutory Interpretation.”
Breyer noted, for example, when the Constitution was written and people were promised “equal protection under the law.” But there was no on-going debate about same sex marriages at that time, he said. As a result, justices need to consider what the framers intended by that phrase.
Scalia disagreed. He asked the crowd to imagine having a Constitution with a footnote at the end that said something along the lines of “Equal protection means what the Supreme Court says it means from year-to-year.”
People who believe in an evolving Constitution say it will increase flexibility, but it will actually result in rigidity, Scalia said.
If people want to change their laws to keep up with a modern society, Scalia said they need to go to their Legislatures.
Justices should not be applying values to text because “that’s a road to the end of Democracy,” Scalia said.
“There are no answers once you abandon the original meaning of the text,” Scalia said.
Breyer used a hypothetical murder to illustrate his point.
Criminal defendants have the right to confront their accusers in court and hearsay testimony is impermissible, Breyer said.
But what happens if a woman tells a police officer her husband is going to kill her and then the husband kills her, Breyer asked. Should the police officer be precluded from testifying because the defendant has a right to confront his accuser?
Breyer also pointed out that what were once acceptable means of punishment are no longer acceptable and the crimes that were once punished harshly are no longer punished so severely.
When asked about the death penalty for juveniles, Breyer said he doesn’t believe anyone today thinks it’s OK to execute a 13-year-old.
“Where you draw the line today is not where you drew the line back then,” Breyer said.
Scalia argued his approach, which he called “originalism” yields many of the answers they seek, while Breyer’s approach, which he called “playing-it-by-ear” yields zero answers.
The test isn’t whether you get to the right answer, or the answer that is going to make for a happier society, but rather if — over the long run — society adheres to a group of principles, Scalia said.
With an evolving constitution, society would be adhering to the ideals of a revolving group of nine people sitting on the U.S. Supreme Court bench, Scalia said.
The event was sponsored by the University of Arizona's William H. Rehnquist Center, PBS and Arizona Attorney magazine. It was moderated by Pete Williams, NBC News justice correspondent.
First year UA law students Adam Dippel and Ben Tate were among the 500 or so people in attendance Monday.
Both students were familiar with the justices’ stances, but jumped at the chance to see the men live.
“It was an incredible opportunity to hear two people at the pinnacle of the academic side of the law,” Tate said.
“I thought it was really interesting,” Dippel said. “I’m glad I did it. I don’t agree with Scalia too much, but I enjoyed his arguments. They were well made.”
Stephanie Meade, who is the City of Tucson’s chief public defender, called the event “pretty remarkable.”
“I thought it was wonderful,” Meade said. “You got to see their personalities, their congeniality and their senses of humors, things that never come across in their opinions.”