Antonin Scalia: The United States Constitution is “Dead”

posted at 8:54 pm on June 7, 2009 by directorblue
[ Supreme Court ]    printer-friendly

Now this is a Supreme Court Justice.

Question: Antonin Scalia, quote: “The Constitution that I interpret is not living, but dead.” Close quote. Explain that one.

Scalia: Much of the harm that has been done in recent years by activitist Constitutional intepretation… is made possible by a theory which says that, unlike an ordinary law, which doesn’t change — it means what it meant when it was enacted, and will always mean that — unlike that, the Constitution changes from decade to decade, to comport with… quote “the evolving standards of decency that mark the progress of a maturing society”.

In other words, we have a morphing Constitution and, of course, it’s up to the court to decide when it morphs and how it morphs! That’s generally paraded as quote ‘The Living Constitution’ and, unfortunately, that philosophy has made enormous headway not only with lawyers and judges but even with John Q. Public.

…”Does the equal protection clause require states to permit same sex marriage?” That is not a hard question for an originalist. Nobody ever thought that is what the equal protection clause meant. … Is there a right to an abortion? For Pete’s sake, it was criminal in every state for 200 years. If you want a right to abortion, create it the way most rights are created in a democracy. Persuade your fellow citizens it’s a good idea and enact it into law. Don’t tell me the Constitution confers such a right.”

…For the living Constitutionalist, there are no answers. I have sat with four colleagues, one still on the Court, who thought that the death penalty was unconstitutional. It’s mentioned in the Constitution! But [for proponents of "the living Constitution"] every day is a new day. If [the death penalty] used to be constitutional, maybe tomorrow it won’t be.”

…[On a resurgence of originalism,] I am not optimistic… I will put it that way. We got here. We ought to be able to get back. … Harvard Law School now has three originalists on the faculty. I never thought I would see one. … And there are other [originalist] federal judges, not just on the Supreme Court but on the Courts of Appeals, judges like Larry Silberman [Judge Laurence H. Silberman of the U.S. Court of Appeals for the District of Columbia]. But I have to say it’s a hard fight.

…[My] legacy doesn’t matter. What matters is the Constitution. We had a wonderful thing here. We have a wonderful thing here. I truly believe it cannot continue if we turn over so much of our democratic self-governance–so much of what makes us great–to unelected judges.

That is what I care about.

Hat tips: Forbes’ Peter Robinson and Fora.tv.

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