Justice Scalia, lead singer of the Originalists, played to a packed house at the Brooklyn Academy of Music the other night, wowing the audience with the tunes that catapulted him to fame, “Gimme that Old Time Constitution,” “I Can’t Give You Anything But the Text, Baby,” “I Don’t Want Your Emanations and Penumbras,” and his new hit, “Stupid but Constitutional.”
The Originalists, in case you missed the last episode of The Federalist Papers, believe that the only criterion for interpreting the Constitution is what it meant to the people who voted for it in 1791. It’s either that or chaos, warns Pope Nino. Once you stray from the Path of Originalism you’re condemned to the hellfire of Personal Policy Preferences where there is wailing and gnashing of teeth.
Scalia’s road show always includes a straight man feeding him cues to demonstrate that in Originalism there is no east or west. This one featured a dodgy-looking television judge prompting, “Didn’t you uphold flag burning as protected First Amendment speech?” referring to Scalia’s signing on with the majority in Texas v. Johnson. “If I were king, I would have jailed that bearded weirdo,” Scalia chuckled. “Wearing sandals!” he added in mock horror.
A veteran trouper, Scalia easily fielded heckling from right and left, tossing out snappy comebacks like, “I said I’d take questions, I didn’t say I’d give answers.” He brought down the house (heavily laced with students from our alma mater the Acme School of Law & Refrigerator Repair) with, “I don’t read footnotes.” We never did either, which is why we graduated number 398 out of 400.
Our personal favorite was when he wrapped up a long answer with, “I’m not sure that was your question, but I wanted to make that point.” We’re saving that for our next oral argument.
But what’s he like at home, you ask? Here’s a typical evening with the Scalias.
Scene: Justice and Mrs. Scalia and their nine children, each named after a Supreme Court Justice, setting the table for dinner. Scalia is wearing an apron the children gave him for Founding Fathers Day saying “Stupid but Constitutional.” Mrs. Scalia wears a matching apron saying, “I’m with Stupid.”
Scalia: Cardozo, honey, did you churn the butter?
Cardozo: No, Daddy. I found out you can buy it ready-churned at the store. In a convenient plastic tub.
Scalia: What! That’s not what they meant by butter in 1791!
Harlan: But Dad, butter has gradually evolved since then.
Scalia: (reading the label) “I Can’t Believe It’s Not Butter.” Well, I certainly can. Get this abomination off the table at once! What qualifies you nine kids to decide what is and isn’t butter?
Burger: (a 1L at Holy Crown of Thorns Law School) It’s substantially butter. It’s been duly processed.
Scalia: Rubbish! Everything is either substance or process, it can’t be both.
O’Connor: (the baby) I like this better. Not so full of yukky cow hair.
Rehnquist: (the middle daughter) And so much more convenient than having to spend hours churning!
Scalia: (tearing at the remains of his hair) Substituting yellow-tinted crankcase oil for butter because it’s more convenient is like eliminating the Sixth Amendment because it would be faster to execute people without the right to call witnesses and a jury trial! Not that I’m against the death penalty, mind you, that’s a no-brainer, since it existed in 1791.
Mrs. Scalia: Who wants to go out for Chinese dinner? (all concur)
Scalia: The American people have spoken.