On Tuesday, September 19, students, faculty and members of the Colgate community gathered in Persson Hall Auditorium to hear a lecture called “Debating Scalia: The Jurisprudence and Legacy of an Originalist.” The debate featured Professor of American Constitutionalism at Claremont McKenna College Ralph A. Rossum and Professor of Civil Rights at Lafayette College Bruce Allen Murphy. The debate was moderated by Professor of Political Science Stanley Brubaker.
As Rossum and Murphy debated, a portrait of the late Justice Antonin Scalia, who passed away suddenly in 2016, was projected overhead.
Rossum began with an introduction of Scalia’s originalism, explaining that Scalia believed it was necessary to examine what the Constitution meant to the society that adopted it, also known as original public meaning jurisprudence.
“During his nearly 30 years of service on the Supreme Court, Scalia assiduously and consistently pursued a textualist, or original public meaning, jurisprudence. He argued that primacy must be accorded to the text, structure and history of the document being interpreted, and that the job of the judge is to apply the clear textual language of the Constitution or statute, or the critical structural principle necessarily implicit in the text,” Rossum said. “Judges, [Scalia] argued, are to be governed only by the text and tradition of the Constitution, not by their own intellectual, moral or personal perceptions.”
Murphy, however, put forth a defense of a living Constitution, one that is not constrained by an original public meaning jurisprudence.
“In my opinion, Scalia’s decision to operate on the court as a ‘Court of One,’ as I title my biography of him, had as much an effect on his overall legacy as his jurisprudence,” Murphy said.
The crux of Murphy’s argument depended on his determination that Scalia was not focused on building coalitions with his fellow justices, and that this ultimately will curb his legacy.
“One brilliant justice, no matter how determined, cannot control the entire court to shape the meaning of the Constitution in a lasting way. While I have no doubt that Antonin Scalia will be remembered as one of the most visible justices in American history, if not actually the most visible, I believe that … [if he] had sought to create a court of five rather than a court of one, his overall precedential legacy might have been even more lasting,” Murphy said.
At the end of Murphy’s opening remarks, he asked Rossum to respond to the question: “50 years from now, when jurisprudential historians write the definitive account of the last three decades of the court’s history, and trace the theoretical history of originalism, who will be seen as the greatest and purest originalist: Antonin Scalia, Clarence Thomas or David Souter?”
In his response to Murphy’s question, Rossum refuted the notion that Scalia was wrong to pursue a court of one.
“Scalia was a passionate man. He wrote with verve, with panache. I asked him once why he wrote so colorfully, and he said, ‘I know where my colleagues stand on every issue, I can’t persuade them. But I can persuade the future generations of law students. I want my opinions in the case books.”
Overall, Rossum distinguished between the different ideological stances Scalia and Thomas took on originalism.
“There are three forms of originalism. One form is often described as original intent. Another is called original understanding. The third is original meaning, public meaning,” Rossum said.
He posited that Thomas fell under all three, and took all three forms into account, whereas Scalia’s form of originalism is that of original public meaning.
“I knew, personally, Scalia very well. I don’t know Thomas. But I admire Thomas more than Scalia,” Rossum concluded.
The Constitution Day debate occurs annually at Colgate, and Brubaker discussed his process for deciding the debate topic.
“I try to pay attention to what would be not only important, but also interesting, what’s kind of hot, and what students would like to come hear about. Sometimes I’ve decided on things that I simply think are important, but maybe not that hot. More often than not, we try to do something that’s both important and hot,” Brubaker said.
Scalia’s death occurred soon before he was scheduled to meet with Colgate students participating on the Washington, D.C. study group, led by Brubaker during the 2016 spring semester. Scalia had met with Colgate’s study group in D.C. for many years.
“Justice Scalia had agreed to talk with our study group in the spring of 2016; the students were thoroughly prepared and in fact most had finished at least their first draft of a paper on his jurisprudence. So the news of his death, just a week before his scheduled visit, was an especially sad moment for group,” Brubaker recalled.
As for the timeliness for the debate topic, Brubaker believes it is important to take the opportunity to assess Scalia’s impact on the law.
“Scalia’s originalism is not exactly timely, but is in some sense timeless and interesting,” Brubaker said.
Senior Rahil Uppal attended the debate, and expressed his opinion on Colgate’s recognition of Constitution Day.
“I think every Constitution Day we celebrate is a privilege in what looks to be an increasingly undemocratic world: we get to affirm, in our differing views, the very principles of argument and disputation that the founding fathers thought should animate not merely the judiciary, but the spirit of the American liberal democracy in toto. In short, we say ‘yes’ to the Constitution every time we debate it and – in this case – its expounders through the years. And that’s not something you can say about the supreme laws of many other nations,” Uppal said.
Contact Megan Leo at [email protected]