I am persuaded, therefore, that the Maryland procedure is virtually constitutional. Since it is not, however, actually constitutional, I would affirm… - Antonin Scalia

I think it is up to the judge to say what the Constitution provided, even if what it provided is not the best answer, even if you think it should be amended. If that's what it says, that's what it says.

I think [that] '[t]he judicial Power of the United States' conferred upon this Court 'and such inferior courts as Congress may establish', must be deemed to be the judicial power as understood by our common-law tradition. That is the power 'to say what the law is', Marbury v. Madison, 1 Cranch 137, 177 (1803), not the power to change it.

I define speech as any communicative activity. [Can it be nonverbal?] Yes. [Can it be nonverbal and also not written?] Yes. [Can it encompass physical actions?] Yes. Watt [Community for Creative Non-Violence v. Watt, 703 F.2d 586 (1983)] was a case in which what was at issue was sleeping as communicative activity. What I said was that for purposes of the heightened protections that are accorded, sleeping could not be speech. That is to say, I did not say that one could prohibit sleeping merely for the purpose of eliminating the communicative aspect of sleeping, if there is any . . . [and] I did not say that the Government could seek to prohibit that communication without running afoul of the heightened standards of the first amendment. If they passed a law that allows all other sleeping but only prohibits sleeping where it is intended to communicate, then it would be invalidated. But what I did say was, where you have a general law that just applies to an activity which in itself is normally not communicative, such as sleeping, spitting, whatever you like; clenching your fist, for example; such a law would not be subject to the heightened standards of the first amendment. That is to say, if there is ordinary justification for it, it is fine. It does not have to meet the high need, the no other available alternative requirements of the first amendment. Whereas, when you are dealing with communicative activity, naturally communicative activity—writing, speech, and so forth— any law, even if it is general, across the board, has to meet those higher standards.