Justice Scalia on Federalism and Separation of Powers
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JUSTICE SCALIA ON FEDERALISM AND
SEPARATION OF POWERS
2016 National Lawyers Convention*
Judge Pryor: Good afternoon. This Panel will discuss Justice Scalia
on federalism and separation of powers. Now, Justice Scalia's views on
this subject were fairly well known. In 2008, he authored a foreword to a
symposium on the separation of powers as a safeguard of federalism in
the Notre Dame Law Review.' His Foreword, entitled The Importance of
Structure in Constitutional Interpretation, left no doubt what Justice
Scalia's view on the subject was.2 I'd like to read a couple of paragraphs of
what Justice Scalia said in that foreword.
In the days when I taught constitutional law, the University of Chicago
Law School had two constitutional courses. One was entitled Individual
Rights and Liberties and focused primarily upon the guarantees of the
Bill of Rights. The other (I forget the title of it) focused upon the
structural provisions of the Constitution, principally the separation of
powers and federalism. That was the course I taught-and I used to
refer to it as real constitutional law. The distinctive function of a
constitution, after all, is to constitute the political organs, the governing
structure of a state. Many of the personal protections against the state
taught in constitutional law courses here-restrictions upon unlawful
searches and seizures, for example-used to be taught in Europe as part
of administrative law. They were, to be sure, made part of our
Constitution (though most of them as an appendage to the original
document). And that was no doubt desired. But it is a mistake to think
that the Bill of Rights is the defining, or even the most important,
feature of American democracy. Virtually all the countries of the world
today have bills of rights. You would not feel your freedom secure in
most of them ....
This Panel was held on November 17, 2016, during the 2016 National Lawyers
Convention in Washington, D.C. The panelists included: Professor John S. Baker, Jr.,
Professor Emeritus at Louisiana State University Law School and a Visiting Professor at
Georgetown University Law Center; the Honorable Ron DeSantis, U.S. House of
Representatives, Florida 6th District; Mr. Roger Pilon, Vice President, Legal Affairs, Cato
Institute; the Honorable Luther Strange III, Attorney General, Alabama; Professor
Jonathan Turley, The George Washington University Law School; moderated by the
Honorable William H. Pryor Jr., U.S. Court of Appeals for the Eleventh Circuit.
For an audio and video recording of the complete panel, please visit the Federalist
Society's website. Justice Scalia on Federalism and Separation of Powers, Federalist Soc'y
(Nov. 23, 2016), https://fedsoc.org/commentary/videos/justice-scalia-on-federalism-and-
separation-of-powers-audio-video.
1 Antonin Scalia, Foreword: The Importance of Structure in Constitutional
Interpretation, 83 NOTRE DAME L. REV. 1417, 1417 (2008) [hereinafter The Importance of
Structure].
2 Id.](ViewImageLocal?handle=hein.journals/regulr30&div=8&collection=&method=preview&ext=.png&size=3)
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Justice Scalia on Federalism and Separation of Powers
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