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Scalia: Living Constitution? Bah!
Posted by: McQ on Wednesday, February 15, 2006

Not one to particularly mince words, SCOTUS Justice Antonin Scalia disclaimed the concept of a "living Constitution:"
People who believe the Constitution would break if it didn't change with society are "idiots," U.S. Supreme Court Justice Antonin Scalia says.

In a speech Monday sponsored by the conservative Federalist Society, Scalia defended his long-held belief in sticking to the plain text of the Constitution "as it was originally written and intended."

"Scalia does have a philosophy, it's called originalism," he said. "That's what prevents him from doing the things he would like to do," he told more than 100 politicians and lawyers from this U.S. island territory.

According to his judicial philosophy, he said, there can be no room for personal, political or religious beliefs.

Scalia criticized those who believe in what he called the "living Constitution."

"That's the argument of flexibility and it goes something like this: The Constitution is over 200 years old and societies change. It has to change with society, like a living organism, or it will become brittle and break."

"But you would have to be an idiot to believe that," Scalia said. "The Constitution is not a living organism, it is a legal document. It says something and doesn't say other things."

Proponents of the living constitution want matters to be decided "not by the people, but by the justices of the Supreme Court."

"They are not looking for legal flexibility, they are looking for rigidity, whether it's the right to abortion or the right to homosexual activity, they want that right to be embedded from coast to coast and to be unchangeable," he said.
While I'm not so sure how useful it is calling those who are proponents of the concept of a "living constitution" idiots, I agree with Scalia's basic point. The Constitution of the US is a legal document. And like all legal documents, it says what it says and those things it says have a particular meaning. We have a method to change what it says, and that method does not include arbitrary rulings reflecting perceived "changes in society" by the justices of the Supreme Court. Their primary job is to clearly interpret the existing legal document and ensure the existing legal concepts are properly implemented.

That leaves "society", through the legislature, with the job of finding a way to "reflect changes in society" as it should be. Of course, for those who want a particular agenda, that's a much harder course than getting their way through the courts. Now they must persuade a majority of the population that their way is the right way vs. getting their way by judicial fiat.

And now you know why the fight over the Supreme Court is so very important, perhaps more important than just about anything at this time. We need more Scalias who understand this role, and not more Ginsburgs or Kennedys. That will definitely come to the fore if Bush gets another nomination (a distinct possibility given the age of some of the justices on the more liberal side of the fence). That nomination will make the War of the Worlds look like a tea party.
 
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That will definitely come to the fore if Bush gets another nomination...
And even if he doesn’t get another nomination, it should make the next presidential election very entertaining.
 
Written By: W
URL: http://
That’s the argument of flexibility and it goes something like this: The Constitution is over 200 years old and societies change. It has to change with society, like a living organism, or it will become brittle and break.
You know, the founding fathers realized this. They realized that the constitution would need to change with time. They even planned the process for making these changes into the document itself and that process can itself be changed. But unfortunately, the way to make the necessary changes is not by interpreting the constitution to mean what you want it to mean. The way to make the constitution change with time is by using the f’ing amendment process.

Of course getting an amendment passed is much more difficult than getting a fool on the judiciary because amendments actually involve getting the direct consent from the governed.
 
Written By: Jeff the Baptist
URL: http://jeffthebaptist.blogspot.com
There’s a character in Alice in Wonderland (I think it’s Humpty Dumpty, but it’s been a while since I read the book) who says, "Every word I use means exactly what I choose it to mean, nothing more and nothing less."

That’s the world the "living Constitution" proponents would have us live in. Words mean only what we choose them to mean today; tomorrow the same words can mean something completely different.

Part of the problem is the apparent unwillingness of legislatures to adapt laws to societal changes. We see that quite a bit at the state level, where ballot initiatives and referenda are used (and often overused) in areas where legislatures are seemingly too scared to act. It’s relatively easy to enact laws to reflect changes in society. It’s more difficult to amend the Constitution to reflect those changes. But it’s darn near impossible to get anything done if the meaning of the Constitution changes every day.

 
Written By: Steverino
URL: http://steverino.journalspace.com
Oh please! Scalia is so full of crap. "Originalist" on odd days, maybe, but he’s just as happy to abandon that principle when it suits him. Does he think everyone’s forgotten his vote in Raich?
 
Written By: Matt McIntosh
URL: http://conjecturesandrefutations.net/weblog/
I’d be more convinced if Scalia were actually serious about this. No one on the Supreme Court ever claims to be activist or willing to ignore the language of the Constitution. No one says they have an agenda to remake the Constitution. Scalia makes noises about following the original intent, but turns out to be as outcome driven as anyone else on the Court.

I don’t think that any of the justices are totally predictable, but Scalia’s vote is as predictable as any on purely political grounds. Sure, he’ll chastise someone for doing a lousy job on search and seizure once in a while, but he’ll also defer in unseemly fashion to conservative arguments that are much further into the penumbra of the Constitution than privacy. He complains about original intent when he’s on the losing side.

One of the problems is that the Constitution is nearly unamendable where it has serious weaknesses. Small states have too much power and modern conceptions of fairness rebel at that, yet nothing can be done. The Constitutional Convention, something that some of the Founding Fathers expected to be used routinely, is feared as an option. Instead we have silly proposals like marriage amendments.
 
Written By: freelunch
URL: http://
Scalia wasn’t much of an "originalist" when he helped appointed Bush president in 2000.
He has his own agenda and he uses the constitution in a manner similar to the way many fundamentalists use the Bible. He starts with his conclusion and examines the text in search of justification for that conclusion
 
Written By: Richard A.Schladen
URL: http://
I have to concur: Thomas seems to be the only reasonably principled originalist on the bench. (We don’t know about Roberts or Alito, yet.) Scalia is a partisan, and while he claims originalism at every opportunity, he votes on precedent over originalism, or just makes up new tests out of whole cloth, whenever following original intent or original meaning or precedent doesn’t get the result he wants. In Raich he voted to overturn a state law on specious Constitutional grounds that he himself had argued against in other circumstances (ie: not involving drugs). Does anyone really think that if the law had involved growing corn for one’s own use, avoiding Federal regulation because it was entirely grown and used in one State, that Scalia would have voted the same way?

Scalia gives originalism, a good philosophy, a bad odor, because he uses it as a club to get his way, and ignores it when it doesn’t suit. How does this differ from the "living Constitution" philosophy in practical effect?

Speaking of practicality, it’s clear that no justice can be completely principled. For example, I firmly believe that wealth transfers are not Constitutionally allowed, yet I would not overturn Social Security or Medicare or Medicaid. Why? Because, simply, the societal effects of overturning these programs without a wind-down period would be worse than the Constitutional affront of continuing them. That said, just what case for the devastation of society could be made in Raich? None that I can see.
 
Written By: Jeff Medcalf
URL: http://www.caerdroia.org/blog
Part of the problem is the apparent unwillingness of legislatures to adapt laws to societal changes. We see that quite a bit at the state level, where ballot initiatives and referenda are used (and often overused) in areas where legislatures are seemingly too scared to act. It’s relatively easy to enact laws to reflect changes in society.
Injustice takes a loud, sustained moral outrage on the part of the victims and their supporters. Look how long fundamental injustice in America lasted in so many areas. We didn’t abolish slavery until we involved ourselves in a horrible civil war and it took another century to give the descendants of slaves the legal rights that the slave owners had had. Women agitated for the vote for about a century before they finally got it and it took the most part of another century to effectively give them equal rights.

Only rarely do we see the government acknowledge its mistake quickly. Prohibition comes to mind.

With a track record like that, it’s no wonder that those who feel they have been victims of injustice turn to the courts rather than legislatures.
It’s more difficult to amend the Constitution to reflect those changes. But it’s darn near impossible to get anything done if the meaning of the Constitution changes every day.
Of course, even the most ’activist’ Court makes very few changes to our understanding of the Constitution.
 
Written By: freelunch
URL: http://
Anytime Scalia says something about how pure his method of interpretation is, he should have Employment Division v. Smith shoved down his throat. The Free Exercise clause of the First Amendment says that Congress (and the States via the 14th) shall make NO law restricting the free exercise of religion. In Smith, Scalia ignored that simple prohibition.

Indeed, there are dozens of cases in which Scalia’s rhetoric and his votes flatly contradict each other. He is as results oriented as any justice on the court. The only people who believe that he adheres to any kind of principles are those who haven’t made any serious effort to read his opinions or tracked his votes.
 
Written By: mkultra
URL: http://
In addition to Gonzalez vs Raich and Employment Division vs Smith, I’ll also add his dissent in Lawrence vs. Texas didn’t exactly make him a model of originalism either.

I’d be fine with Originalism if any judge at all who claimed they followed it actually did; instead they do the exact same outcome based reasonin/lame justifications that they accuse the "liberal/activist" judges of doing. The only difference that the "Originalists" have is their decision come out in favor of the modern day "conservatives" rather than modern day "liberals".
 
Written By: Tito
URL: http://
This isn’t the first time you’ve brought up Employment Division v. Smith, and you’ve been shot down with it before.

Summary of the case
Justice Scalia, writing for the majority, observed that the Court has never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that government is free to regulate. Allowing exceptions to every state law or regulation affecting religion "would open the prospect of constitutionally required exemptions from civic obligations of almost every conceivable kind." Scalia cited as examples compulsory military service, payment of taxes, vaccination requirements, and child-neglect laws.
If a religion were to practice human sacrifice — even with willing participants — the state would rightly shut them down. Just because you do something in the name of your religion doesn’t exempt you from following valid laws.

Scalia’s ruling in Bush v. Gore fit in line with originalism since his reasoning was that the Florida Supreme Court overstepped its authority and attempted to change election laws on the fly. The text of the Constitution clearly gives the state legislatures the authority to determine how presidential electors are selected.

Regarding Lawrence v. Texas, in reading Scalia’s dissent from the majority, I’m not sure how you can say he wasn’t "originalist" in his opinion. Excerpts from his dissent:
Texas Penal Code Ann. § 21.06(a) (2003) undoubtedly imposes constraints on liberty. So do laws prohibiting prostitution, recreational use of heroin, and, for that matter, working more than 60 hours per week in a bakery. But there is no right to "liberty" under the Due Process Clause, though to day’s opinion repeatedly makes that claim. Ante, at 567 ("The liberty protected by the Constitution allows homosexual persons the right to make this choice"); ante, at 574 (" ’These matters ... are central to the liberty protected by the Fourteenth Amendment’ "); ante, at 578 ("Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government"). The Fourteenth Amendment expressly allows States to deprive their citizens of "liberty," so long as "due process of law" is provided:

"No state shall ... deprive any person of life, liberty, or property, without due process of law." Arndt. 14 (emphasis added).
Our opinions applying the doctrine known as "substantive due process" hold that the Due Process Clause prohibits States from infringing fundamental liberty interests, unless the infringement is narrowly tailored to serve a compelling state interest. Washington v. Glucksberg, 521 U. S., at 721. We have held repeatedly, in cases the Court today does not overrule, that only fundamental rights qualify for this socalled "heightened scrutiny" protection-that is, rights which are "’deeply rooted in this Nation’s history and tradition,’" ibid. See Reno v. Flores, 507 U. S. 292, 303 (1993) (fundamental liberty interests must be "so rooted in the traditions and conscience of our people as to be ranked as fundamental" (internal quotation marks and citations omitted)); United States v. Salerno, 481 U. S. 739, 751 (1987) (same). See also Michael H. v. Gerald D., 491 U. S. 110, 122 (1989) ("[WJe have insisted not merely that the interest denominated as a ’liberty’ be ’fundamental’ ... but also that it be an interest traditionally protected by our society"); Moore v. East Cleveland, 431 U. S. 494, 503 (1977) (plurality opinion); Meyer v. Nebraska, 262 U. S. 390, 399 (1923) (Fourteenth Amendment protects "those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men" (emphasis added)).3 All other liberty interests may be abridged or abrogated pursuant to a validly enacted state law if that law is rationally related to a legitimate state interest
Seems to me a reasoned dissent, one based on prior precedent and what the Constitution actually says. You may disagree with it, but saying Scalia isn’t originalist because you disagree with his opinion isn’t exactly an argument.


The argument against Scalia here seems to be that he’s not really an originalist because he’s not always an originalist. I suppose you can make that argument, but I don’t find it particularly compelling.
 
Written By: Steverino
URL: http://steverino.journalspace.com
In Smith, Scalia ignored that simple prohibition.
MK, you are consistently wrong on so many legal issues that there is no way you could have actually passed a bar exam. Scalia clearly explained the 1st Amendment issue and backed it up with historical precident:
We have never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate. On the contrary, the record of more than a century of our free exercise jurisprudence contradicts that proposition.
 
Written By: JWG
URL: http://
" he’s not really an originalist because he’s not always an originalist. "
How about, "I’m an honest person who’s not always honest."
Is this more of that PoMo stuff?
I don’t find it very compelling.
 
Written By: The Owner’s Manual
URL: http://gcruse.typepad.com
The argument against Scalia here seems to be that he’s not really an originalist because he’s not always an originalist.
Except that MK avoids any specific case to demonstrate his point other than his flawed Smith example.
 
Written By: JWG
URL: http://
Their primary job is to clearly interpret the existing legal document and ensure the existing legal concepts are properly implemented.
While I generally agree, the problem comes when existing legal concepts are applied to a changing world.
 
Written By: Rosensteel
URL: http://
freelunch says : Scalia wasn’t much of an "originalist" when he helped appointed Bush president in 2000.


Funny , I looked at that case as the Supreme Court telling the Florida Supreme Court that THEY couldn’t ’appoint’ Gore President. Guess it all depends on who’s ox is being gored huh?
 
Written By: doubled
URL: http://
tito says : Scalia’s ruling in Bush v. Gore fit in line with originalism since his reasoning was that the Florida Supreme Court overstepped its authority and attempted to change election laws on the fly. The text of the Constitution clearly gives the state legislatures the authority to determine how presidential electors are selected.

Exactly.
 
Written By: doubled
URL: http://
While I generally agree, the problem comes when existing legal concepts are applied to a changing world.
That should spur the amendment process, Rosensteel. That’s sort of the point. The SCOTUS does its job according to what it has, and if it doesn’t fit very well in what is termed "today’s world" the amendment process should handily take care of that.
 
Written By: McQ
URL: http://qando.net
My enthusiasm for Scalia has greatly waned, and he is no originalist when the result particularly would offend him. Prof Bainbridge has said as much, and I concur. Otherwise, Scalia would have abided by originalist Commerce Clause jurisprudence in Raich, instead of letting the federal govt stomp all over the State of CA on the issue of medical marijuana. Thomas voted correctly; Scalia, miserably, did not.

Scalia compounded his jurisprudential sin when he again ignored States Rights in the name of the Commerce Clause (and he was dishonest in the rationale he set forth), and dissented in upholding the right of Oregon voters to decide whether within their state physicians would be allowed to prescribe fatal doses of drugs to terminally ill patients.

Scalia has no sympathy for medical marijuana, and holds moral objections to assisted suicide, and voted accordingly. It was naked personal preference, and not adherence to the Constitution as written.
 
Written By: Mona
URL: http://
freelunch says : Scalia wasn’t much of an "originalist" when he helped appointed Bush president in 2000.


Funny , I looked at that case as the Supreme Court telling the Florida Supreme Court that THEY couldn’t ’appoint’ Gore President. Guess it all depends on who’s ox is being gored huh?
I wasn’t the one who said that. I believe it was Richard A.Schladen. I’m no fan of Bush v. Gore because the Court traditionally defers to state Supreme Courts on interpretation of state law and Scalia’s assertion that the Florida Supreme Court was rewriting law rather than applying it didn’t seem strongly supported by the evidence available in the record, but my historical reading of that time is that almost every realistic alternative scenario would have given Bush the presidency (e.g. the limited recount that was requested by Gore appears to have gone to Bush, or the whole thing stays hung so there are no electors from Florida — sending the vote into the House), so I would conclude that it was a poor decision that was unnecessary and would not have affected the outcome.
 
Written By: freelunch
URL: http://
While I generally agree, the problem comes when existing legal concepts are applied to a changing world.
That should spur the amendment process, Rosensteel. That’s sort of the point. The SCOTUS does its job according to what it has, and if it doesn’t fit very well in what is termed "today’s world" the amendment process should handily take care of that.
Yes, it should, but it appears that the amendment process is broken both for trivial reasons and fundamental ones. What alternative do you recommend when amendments do not and cannot happen?
 
Written By: freelunch
URL: http://
Freelunch wrote:

"What alternative do you recommend when amendments do not and cannot happen?"

And I’m going to pipe up with this...

YOU KEEP THE STATUTES OF THE UNITED STATES WITHIN THE BOUNDS OF THE CONSTIUTITION, PERIOD.

You got a problem with that, try to overthrow it in an overt fashion, see where it gets you.

Oh, and freelunch.

TANSTAAFL, believe it and live it.

Yours, TDP, ml, msl, % pfpp
 
Written By: Tom Perkins
URL: http://

 
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