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Justice Scalia speaks about Constitution in Ohio

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By ANDREW WELSH-HUGGINS, The Associated Press Updated 8:16 PM Tuesday, November 17, 2009

COLUMBUS, Ohio — The Constitution is best treated as an original document within the context of its historicalcreation, not as a text subject to modern reinterpretation, U.S. Supreme Court Justice Antonin Scalia said Tuesday.

Scalia was delivering the keynote speech at a daylong forum at Ohio State University law school on the concept of originalism, or the theory the Constitution should be interpreted as its authors intended. He embraces the theory.

"My burden is not to show that originalism is perfect but to show that it beats the other available alternatives," Scalia said. "Did any provision of the Constitution guarantee a right to abortion? No one thought so for almost two centuries after the founding. Did any provision in the Constitution guarantee a right to homosexual sodomy? Same answer."

Yet such questions pose difficulties for judges the 73-year-old Scalia referred to as "non-originalists."

Such interpreters "must agonize over what the modern Constitution ought to mean with regard to each of these subjects and then agonize over the very same question again five to 10 years from now," Scalia said.

Scalia, appointed to the high court by President Ronald Reagan in 1986, said historians can help provide information to judges making decisions but ultimately it is up to judges to decide the meaning of legal texts.

"Originalism is not a guarantee against judicial abuse," Scalia said. "The willful judge can distort history to reflect his own personal views, but originalism does not invite him to make the law what he thinks it should be, nor does it permit him to distort history with impunity."

Sarah Lee, a 28-year-old third-year law student of Korean descent, asked Scalia during a question-and-answer session how he reconciled originalism with rights that have been denied to groups over the centuries.

"I see a time where women did not have the right to vote, I see a time where African-Americans would have been considered chattel and, as someone of Asian descent, I at that time would not have been allowed to come into the country," said Lee, of Charleston, W.Va. "That makes it very difficult for me to reconcile originalism with that reality."

Scalia responded that Lee wasn't objecting to originalism but to the entire Constitution.

"You're saying it is not a valid expression of democracy because at the time the democracy was not widespread enough," he said. "I accept it as a valid, democratically adopted instrument. And it has after all an amendment provision, which is available to everybody."

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November 18, 2009 01:13 AM EST

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