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  • Thursday, February 16, 2006


    Scalia Calls Proponents of 'Living Constitution' Idiots

    Associated Press Writer Jonathan Ewing reported on a February 13, 2006 speech by U.S. Supreme Court Justice Antonin Scalia:

    "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.

    Scalia was invited to Puerto Rico by the Federalist Society for Law and Public Policy
    . The organization was founded in 1982 as a debating society by
    students who believed professors at the top law schools were too liberal.
    Conservatives and libertarians mainly make up the 35,000 members."

    In simplistic terms, the “living constitution” is an approach to constitutional interpretation that views the principles of the Constitution as adaptable in order to allow the Constitution to cope with current problems and needs. What Scalia refers to as “originalism” entails the belief that the only legitimate role for the courts in constitutional interpretation is to apply the "original meaning" of the text and/or the original intention of the framers of the Constitution. Originalists claim that any other method of constitutional interpretation involves the courts in imposing their individual value judgments, which is inconsistent with what they view as our fundamental commitment to democracy in which legislatures are to make the substantive value choices and the courts are to neutrally apply the constitutional text. Thus, legislatures’ substantive value choices are not to be displaced unless they conflict with the text and intention of the Constitution.

    Leaving aside the issue of whether Scalia’s record on the Supreme Court demonstrates that he practices what he preaches, originalism as a method of constitutional interpretation, while cloaking itself in a patina of objectivity and neutrality, actually requires judges, in most cases, to make the same type of substantive value judgments for which originalists criticize other methods of constitutional interpretation.

    The language of most constitutional amendments is not specific enough to be applied to specific cases without some interpretation. As applied to specific cases, especially those involving technologies that the framers may never have even dreamed of, there is rarely any demonstrable consensus among the framers and ratifiers of the Constitution as to what principle is stated or implied by a given constitutional provision. If there was a consensus as to what the framers and ratifiers meant by a constitutional provision, that consensus is usually too general, vague, or indefinite to provide guidance for application to a specific problem.

    As applied to most cases, there is, at best, ambiguity as to the precise meaning or reach of a constitutional provision. In such cases, originalists are instructed to interpret and apply the constitutional text in a manner so as to at least not contradict the text of the Constitution itself. But, in a specific case, determining which interpretation and application of a constitutional provision is non-contradictory of the text of the Constitution begs the entire question of what the constitutional text means, and is fraught with the same type of results-oriented substantive value judgments for which originalists criticize other approaches. In general, originalism results in no definite answer with respect to how to apply constitutional provisions in specific cases.

    But originalism is plagued by deeper, more fundamental problems. For example, we do not know how the framers intended their intentions to be determined and applied. In other words, did the framers intend their original intentions as to the meaning of particular constitutional provisions to be binding on future generations, or did the framers intentionally draft the provisions to allow future generations to interpret them in the light of advances in knowledge and technology and changes in society they could not have then imagined?

    In addition, as stated by Professor Bobbit:

    “We do not have an original commitment to a particular form of historical
    argument. To what source are we to refer for an authoritative understanding? To
    statements of members of the Convention who proposed a particular provision? To
    the debate surrounding its adoption on the Convention floor?…Or should we
    look…instead to the various ratifying state conventions?”


    “The records of the debates are so scanty that full discussion of any point has
    been lost; more importantly, the Convention met in secret without official
    minutes in an atmosphere that concealed dissent and put a premium on achieving
    agreement to a document that was unglossed or unexplained in any way that might
    disclose or provoke fissures in the coalitions that proposed it.

    “It is rare that the debate surrounding the adoption of particular language can provide a decisive historical argument for a provision being construed in a particular
    way. At most such study is likely to indicate only the concerns of the more
    voluble or more forceful members of the Convention. Finally, the debates cannot
    operate affirmatively to establish the correctness of a particular construction
    because they can’t establish why a coalition of state delegations adopted a
    particular measure.”

    The point is that Scalia’s provocative denunciation of proponents of the “living constitution” as illegitimately imposing substantive value choices applies with equal force to his own professed philosophy of originalism. The only difference is that originalists pretend that their policy choices are neutrally-derived in accordance with the original intention of the framers of the Constitution.

    In a speech given at Yale University in 1962, President John F. Kennedy emphasized the responsibility of each new generation for defining the accepted clichés and value phrases of the American heritage in terms of its own needs and challenges. Kennedy stated: “As every past generation has had to disenthrall itself from an inheritance of truisms and stereotypes, so in our times we must move on from the reassuring repetition of stale phrases to a new, difficult but essential confrontation with reality.”

    Similarly, Alfred North Whitehead stated:

    “The art of free society consists in the maintenance of the symbolic code; and
    secondly in fearlessness of revision, to secure that the code serves those
    purposes which satisfy an enlightened reason. Those societies which cannot
    combine reverence to their symbols with freedom of revision must ultimately
    decay either from anarchy or from the slow atrophy of a life stifled by useless

    These statements question the value of reference to original intention as a determinant of modern constitutional issues.

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