Scalia Defends the Constitution, Questions the 17th Amendment

Photo Credit: Flickr

Photo Credit: Flickr

Supreme Court Justice Antonin Scalia reaffirmed his commitment to defending the Constitution while speaking to the Federalist Society in his home state of New Jersey on Friday.

Scalia, the preeminent conservative firebrand of the court, told the audience it is the structure of the government under the Constitution and not the liberties guaranteed under the Bill of Rights that makes us free.

As reported by The Daily Signal: “Every tin horn dictator in the world today, every president for life, has a Bill of Rights,” said Scalia, author of the 2012 book Reading Law: The Interpretation of Legal Texts. “That’s not what makes us free; if it did, you would rather live in Zimbabwe. But you wouldn’t want to live in most countries in the world that have a Bill of Rights. What has made us free is our Constitution. Think of the word ‘constitution’; it means structure.”


Congress passed the first ten amendments to the Constitution, which became known as the Bill of Rights, during the opening months of its first session in 1789, largely following those proposed by the “Father of the Constitution,” James Madison. They were ratified by the states and became the law of the land in 1791.

Scalia argued that without the division of power created by the Constitution, the Bill of Rights, which guarantees freedom of speech and religion, the right to bear arms, protection against unlawful search and seizures, and trial by jury of one’s peers among other rights, would just be paper promises with no mechanism to enforce them.

“The genius of the American constitutional system is the dispersal of power,” he said. “Once power is centralized in one person, or one part [of government], a Bill of Rights is just words on paper.”

Scalia stands on firm ground with his observation. James Madison wrote in Federalist 51 that the best bulwark against government tyranny is structuring a system where “ambition must be made to counteract ambition.”

He observed: “In the republic of America, the power surrendered by the people is first divided between two distinct governments [federal and state], and then the portion allotted to each subdivided among distinct and separate departments [legislative, executive, judicial]. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.”

Scalia noted that the most profound departure from the dispersal-of-power structure established under the Constitution was passage of the ratification of the 17th Amendment in 1913, which changed the method of the election of U.S. senators to the popular vote rather than by the state legislatures.

The Founders intended the House of Representatives to be the “people’s house” with elections every two years, while senators served for six year terms–their constituency being the state legislature. This ensured that senators would have no incentive to trample on the state government’s authority through federal action.

The Constitution created a federal government with certain enumerated powers, leaving all the remaining authority to the states and the people. Scalia and many other critics believe the federal government has usurped broad authority in powers left primarily to the states.

“What a difference that makes,” Scalia said. “When you have a bill that says states will not receive federal highway funds unless they raise the drinking age to 21, that bill would not pass. The states that had lower drinking ages would tell their senators, ‘You vote for that and you are out of there.’”

Repeal of the 17th Amendment is one of the proposals in radio talk show host Mark Levin’s bestselling book Liberty Amendments.

Regarding interpretation of the Constitution overall, Justice Scalia is an originalist. In other words, he believes that it is not up to courts to re-interpret the nation’s governing document, but follow what the Founders’ intended. If the Constitution or laws generally need revision, it is up to the legislative branch to do so. “When we read Shakespeare, we have a glossary. We don’t think the words have changed there, so why do we think they have changed in the Constitution?” the justice has told audiences in the past.

Justice Scalia is currently the longest serving member on the Supreme Court, having been appointed by Ronald Reagan in 1986. Anthony Kennedy is the only other Reagan appointee still serving on the high bench. (See “Scalia Defends the Constitution, Questions the 17th Amendment”, originally posted HERE)

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  • Kathy Adubato

    Making the case for CONVENTION of STATES—-

    “Scalia noted that the most profound departure from the dispersal-of-power structure established under the Constitution was passage of the ratification of the 17th Amendment in 1913, which changed the method of the election of U.S. senators to the popular vote rather than by the state legislatures.

    The Founders intended the House of Representatives to be the “people’s house” with elections every two years, while senators served for six year terms–their constituency being the state legislature. This ensured that senators would have no incentive to trample on the state government’s authority through federal action.”

    • John Liberty

      All we need is politicians WHO KNOW the Constitution and work within its limits. A COS is just a back door for opportunists to tear it apart ! Do you really think that Californians or New Yorkers would stand for anything other than liberal objectives of government control?

      This “convention of the states” is riddled with holes that would allow the “principles” to change ALL, or ANY part of the Constitution as they see fit. It will expand the power of a Federal government, in opposition to what the 10th amendment already says. Those who favor this COS by “improving” the Constitution by amendments are actually complicit with a scheme to increase government power over us …. by rewriting and changing the existing Constitution and not adhering to its limits !!
      Those who understand what is happening KNOW that the only legal way a new constitution can only be introduced is at a convention. Either Congress proposes amendments or Congress calls a convention to propose amendments.
      And who “trusts” Congress to do the right thing, or state delegates appointed for this COS, when they stand idly by as Obama shreads our founding document already !!
      Those supporters tell us its all about the “balanced budget” process should look deeper into the Baseline Budget process that Congress now uses and correct that … not this COS line of Non-Thinking first.

      • KayDeeBeau

        We need citizens who understand this – then we would stop electing “politicians” who are self serving, anti-constitutionalists

  • akprayingmom

    Scalia—the epitome of a true Justice of US Constitutional Rule of Law. Thankful for him and his wisdom in upholding and sustaining American freedom and liberty. GOD bless SC Justice Scalia!

  • wernerpd

    Of course he is right.
    Look who was able to ramrod in the 16th and 17th Amendments –
    progressives/communists. They are hell bent on destroying this country.
    It is done through a system of gradualism – a little bit her, a little
    bit there. Eventually, one day you wake up and realize you no longer live
    in a Constitutional Republic but a post–Constitutional Amerika. The 16th
    and 17th Amendments were equally destructive, but the 16th was slightly more
    important. Without the 16th Amendment, there would be no way to run up
    the federal debt and create the massive leviathan that has been created. Anybody who believes that these changes were
    purely coincidental have not been studying history.

  • wernerpd

    Of course he is right.
    Look who was able to ramrod in the 16th and 17th Amendments –
    progressives/communists. They are hell bent on destroying this country.
    It is done through a system of gradualism – a little bit here, a little
    bit there. Eventually, one day you wake up and realize you no longer live
    in a Constitutional Republic but a post–Constitutional Amerika. The 16th
    and 17th Amendments were equally destructive, but the 16th was slightly more
    important. Without the 16th Amendment, there would be no way to run up
    the federal debt and create the massive leviathan that has been created. Anybody who believes that these changes were
    purely coincidental have not been studying history.

    • Mostly correct – there’s one more piece.

      The 17th transformed Senators from wholly owned and operated representatives of their state legislatures into nationally elected stooges for the highest bidder(s)

      The 16th amendment allowed the Federal government to bribe the states with money stolen from the people, reversing the power structure overnight.

      But wait, there’s more – the Federal Reserve allows that spending and bribery of state governments to be financed even if tax receipts are inadequate. Thus, so-called Republicans were able to appear to be reducing the burden of government, all the while increasing its intrusiveness.
      Translation – without 8 more like Scalia and a president and legislative leaders of like mind, we are screwed.
      Our best bet is to reinforce our states to the point where Federal agencies do not dare to tread in, or on, them, because there’s not a lot of hope for a revolution in Congress.

      • wernerpd

        There is only one fix and you mentioned the word in the last sentence of your post. Sic semper tyrannus…