American - Judge | March 11, 1936 -
But I'm not pro death penalty. I - I'm just anti the notion that it is not a matter for democratic choice, that it has been taken away from the democratic choice of the people by a provision of the Constitution.
Antonin Scalia
DeathPeopleConstitutionChoice
I spent my junior year in Switzerland. On the way back home, I spent some time in England, and I remember going to Hyde Park Corner. And there was a Roman Catholic priest in his collar, standing on a soapbox, preaching the Catholic faith and being heckled by a group. And I thought, 'My goodness.' I thought that was admirable.
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The American people have determined that the good to be derived from capital punishment - in deterrence, and perhaps most of all in the meting out of condign justice for horrible crimes - outweighs the risk of error.
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Because values change, legislatures abolish the death penalty, permit same-sex marriage if they want, abolish laws against homosexual conduct. That's how the change in a society occurs. Society doesn't change through a Constitution.
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What is a moderate interpretation of the text? Halfway between what it really means and what you'd like it to mean?
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If there's anything you absolutely hate, why, it must be unconstitutional. Or, if there's anything you absolutely have to have, it must be required by the Constitution. That's where we are. That is utterly mindless.
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I think Thomas Jefferson would have said the more speech, the better.
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Burning the flag is a form of expression. Speech doesn't just mean written words or oral words. It could be semaphore. And burning a flag is a symbol that expresses an idea - I hate the government, the government is unjust, whatever.
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If you are sentenced to torture for a crime, yes, that is a cruel punishment. But the mere fact that somebody is tortured is - is unlawful under - under our statutes, but the Constitution happens not to address it, just as it does not address a lot of other horrible things.
ConstitutionYouCrimePunishment
Originalism is sort of subspecies of textualism. Textualism means you are governed by the text. That's the only thing that is relevant to your decision, not whether the outcome is desirable, not whether legislative history says this or that. But the text of the statute.
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Power tends to corrupt. But the power in Washington resides in Congress, if it wants to use it. It can do anything - it can stop the Vietnam War, it can make its will felt, if it can ever get its act together to do anything.
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It's not up to the courts to invent new minorities that get special protections.
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