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Justice Scalia on constitutional interpretation

By Robert S. Sargent, Jr.
web posted April 4, 2005

On March 14, 2005, Justice Antonin Scalia gave a talk at the Wilson Center for Scholars on "Constitutional Interpretation." He described his interpretation as "originalism," but that today's accepted jurisprudence thinks of the Constitution as a "living, evolving Constitution." Scalia said that originalism was accepted dogma up until about 50 years ago. How did we get from originalism to a living document, what are the arguments against the living document approach, and where does it lead us?

Scalia began by addressing the recent Roper v. Simmons (PDF) where the Court found that capital punishment for minors is unconstitutional. "I watched one television commentary on the case in which the host had one person defending the opinion on the ground that people should not be subjected to capital punishment for crimes they commit when they're younger than 18. And the other person attacked the opinion on the ground that a jury should be able to decide that a person, despite the fact that he was under 18…should be subjected to capital punishment. And it struck me how irrelevant it was, how much the point had been missed. The question wasn't whether the call was right or wrong, the important question was who should make the call? And that's essentially what I'm addressing today."

What is an originalist? "An originalist's manner of interpreting the Constitution is to begin with the text and to give that text the meaning that it bore when it was adopted by the people." An example is the 19th Amendment which gave women the vote. Even though the Equal Protection Clause existed in 1920, nobody thought it referred to gender discrimination. The original meaning referred to race discrimination. So, when the people decided they wanted to give women the vote, they changed the Constitution. Today, if the women still didn't have the vote, "Someone would come to the Supreme Court and say, ‘you know, your Honor, in a democracy what could be a greater denial of equal protection than the denial of the franchise?' and the Court would say, ‘Yes! even though it never meant it before, the Equal Protection Clause means that women have to have the vote.'" That's the living Constitution way. The difference is who makes the call? The originalist lets the democratic process make the call, and the living Constitution lets the courts make the call.

How did accepted jurisprudence get from originalism to the living document? Justice Scalia said that at first, the text was still used but the words were reinterpreted. The next step was substantive due process. "The Court said ‘there are some liberties that are so important that no process will suffice to take them away,' hence substantive due process." At first this was limited in that "It embraces only those liberties that are fundamental to a democratic society and rooted in the traditions of the American people." The third step was when even that limitation was eliminated (we know that abortion and homosexual sodomy, for example are not "rooted in the traditions of the American people.") So, today, "The Court has essentially liberated itself from the text of the Constitution."

What are Scalia's arguments against the living Constitution? His first argument is its rigidity. "My Constitution is a very flexible Constitution. You think the death penalty is a good idea? Persuade your fellow citizens and adopt it. You think it's a bad idea? Persuade them the other way and eliminate it. You want a right to abortion? Create it the way most rights are created in a democratic society: persuade your fellow citizens it's a good idea and enact it. You want the opposite? Persuade them the other way. That's flexibility." Once these rights are read into the Constitution, then the democratic process is off the table. That's rigidity.

His next argument is "[the living Constitution's] greatest vice is its illegitimacy." If we want the Court to reflect our values as they change from year to year, why have 9 lawyers do the interpreting? How about 9 sociologists, or just 9 politicians? The living Constitution has no principle of interpretation. It merely asks judges to give their opinions of policy and write them into the Constitution. One might ask, don't we need an evolving Constitution to keep up with the times? After all, those words were written over 200 years ago. Scalia answers: "To evolve, all you need is a legislature and a ballot box; things evolve as much as you want. They can create a right to abortion -- they can abolish the death penalty -- they can legitimize homosexual sodomy -- all of these changes can come about democratically."

And finally, "The worst thing about the living Constitution is that it will destroy the Constitution." Essentially, the written words have no meaning. A committee of 9 lawyers will tell us what policy we will have.

Do we really want to go where Scalia says we're heading? We, the people, must ask ourselves if we want to live under a democracy where sometimes, maybe often, we don't agree with public policy, or do we want to live under rule by committee where we hope the committee agrees with us, because if they don't, as in totalitarian governments, there isn't a thing we can do about it.

Robert S. Sargent, Jr. is a senior writer for Enter Stage Right and can be reached at rssjr@citcom.net.

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    is a potent argument for why Antonin Scalia should be respected by every American, writes Steven Martinovich


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