Besides teaching World History to high Schoolers, i also teach a college level American Government class as part of a paralegal training program. One of the issues that we often get into at great length is the notion of whetehr the Constitution is a static or a dynamic document. Students often start out with the position that the Constitution is a living document -- until I ask them how many would accept the notion that their mortgage ageement was a living document that the bank could decide had "grown over time." Suddenly, I find myself in a room full of originalists.
Justice Antonin Scalia spoke at Texas A & M today on the Constitution and the merits of originalism over "living document" jurisprudence. Perhaps the most eloquent advocate of the originalist school, Scalia spoke forefully about the need to be bound by the meaning ascribed to the text by the Founders.
Scalia, who has been on the court since 1986, described himself as an "originalist," someone who thinks the Constitution means the same thing now as when it was first drafted.Calling the idea of the living Constitution "terribly seductive" for judges, Scalia said originalism is the "only game in town."
"You either tell your judges to be bound by the original meaning of the Constitution or you evolve our Constitution the way you think is best," he said. "That is not a road that has a happy ending."
An unhappy road indeed, one on which there is no map and the landscape changes seemingly at random. We have seen all too many such cases over the last several years, notably the Lawrence and Simmons cases. Of most concern is that one can never know whose vision of the proper Constitutional landscape will be imagined on to such an evolving map.
Scalia also noted the danger inherrant in the notion that judicial appointees should be "moderate."
"We want a moderate judge. What in the world is a moderate judge?" he said. "What is a moderate interpretation of the Constitution? Halfway between what it really says and what you'd like it to say?"
Perhaps one could say that moderation in the pursuit of constitutional change is no virtue, and extremism in the defense of original intent is no vice.
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Comments on Scalia Blasts 'Living Constitution' Theory
I think that the true irony is that those who claim that the Constitution is "living" are those whom most want to kill it.
Scalia gets it. Non-originalists (abstractionists ['cuz they got nothin' definitive to believe in]) don't. Law is Law and it's a group effort. Judges who think they know better than the rest of us are lacking in judicial temperment. They are mere wannabe-tyrants who need to get the @#$% over themselves.
Good posting, Greg.
|| Posted by Tuning Spork, May 5, 2005 11:15 PM ||Yeah, they really are little more than legal positivists, arguing that the law is the law because they say it is the law, and needing no further justification.
|| Posted by Rhymes With Right, May 6, 2005 04:59 AM ||and in the same breath, scalia says he wishes the constitution was easier to amend. sounds like someone who wants to change the constitution to suit his views to me. well, our forefathers made that possible too... although they made it tough to do and fortunately with the current demographics, maybe impossible now. if the founders didn't want a living constitution, they wouldn't have let us amend it.
as far as court's interpretations (good or bad as one may view any decision), well that was destined too as NO judge has ever been (or could ever be) a completely neutral and objective arbitrator of the constitution... including scalia. hopefully, ideals and princinples that guided the founders as they drafted the document (such as life, liberty, and the pursuit of happiness... for all men... driven by the courts and reinforced with amendments to include blacks) will guide our leaders.
|| Posted by , May 10, 2005 10:34 PM ||Actually, what Scalia is doing is demonstrating his fidelity to the Constitutioon -- noting that there is a method for changing it, but that it is difficult to do so. That isn't hypocrisy, but rather respect. Your argument is like saying that it is hypocritical for someone who condemns car theft to ever advocate the purchase of a new car.
And to argue that the amendment process is a sign that the Founders intended a living constitution is tp twist the argument beyond belief -- they acknowledged that the Constitution might need to change, and so they provided an explicit method for making those changes. What they did not do was authorize the courts to unilaterally change the document -- they set out an amendment process.
Oh, and by the way -- your last sentence is exactly what Scalia is trying to say in advocating originalism.
|| Posted by Rhymes With Right, May 11, 2005 05:09 AM ||Post a comment