Scalia on Peter Robinson's "Uncommon Knowledge"

[Tex]

Question (regarding Washington and Adams' disagreement over the consitutionality of a national bank): "What is a poor little layman to think of originalism, when it's historically clear that ... two of the key figures involved in drafting the document disagreed over the meaning?"

Look, I do not propose or suggest that originalism is perfect, and provides easy answers for everything. But that is not my burden. My burden is to show that it's better than everything else. The originalist has easy answers for many things, especially the most controversial things in modern times: whether the equal protection clause requires that the states permit same-sex marriage. I mean, you know, that's not a hard question for an originalist. Nobody ever thought that's the equal protection clause meant. It didn't mean that when it was adopted, it doesn't mean that today. It doesn't change to mean that just because the Supreme Court thinks it's a good idea.

Whether there's a right to abortion: for Pete's sake, it was criminal in every state for 200 years! Now, if you want a right to abortion, create it the way most rights are created in a democracy: persuade your fellow citizens it's a good idea, and enact a law. But don't tell me the Constiution confers such a right. So, I have easy answers to a lot of stuff, whereas for the living constitutionalist, there are no answers. Every day is a new day!

I have sat with four colleagues--one still on the court, three since deceased--who thought that the death penalty was unconstitutional. It's mentioned in the Constitution! But every day is a new day, and you know, it used to be constitutional and maybe tomorrow it won't be.

http://tv.nationalreview.com/uncommo...ZhNDU1YjZlMjI=