Scalia on a “Living” v. “Dead” Constitution

Supreme Court Justice Antonin Scalia recently sat down for a multi-part interview that can be viewed on National Review’s Web site. This video covers his views on how the Constitution is interpreted and misinterpreted.

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One Response to Scalia on a “Living” v. “Dead” Constitution

  1. Saqib Ali says:

    This is a fascinating and an enlightening interview. The video of the entire session is available at:

    http://www2.nationalreview.com/hoover/20090316.mov

    Regarding the activist Constitution interpretation, Justice Scalia explained:

    “Much of the harm that has been done in recent years by activist constitution interpretation 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 – the Constitution changes from decade to decade to comport with 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 is up to the court to decide when it morphs and how it morphs. That’s generally paraded as the “living constitution” and unfortunately that philosophy has made enormous headway with lawyers and judges but even with John Q Public.”

    Elaborating on his earlier statement that “devotees of The Living Constitution do not seek to facilitate social change but to prevent it” (Scalia & Gutmann, 1998), Justice Scalia said:

    “To make things change you don’t need a constitution. The function of a Constitution is to rigidify, to ossify, NOT to facilitate change. You want change? All you need is a legislature and a ballot box. Things will change as fast as you like. My Constitution, very flexible, you want right to abortion, persuade your fellow citizens that it is a good idea, and pass a law. And then you find out, the results are worst than we ever thought, you can repeal the law. That’s flexibility. The reason people want the Supreme Court to declare that abortion is a constitutional right is precisely to rigidify that right, it means it sweeps across all fifty states and it is a law now and forever or until the Supreme Court changes its mind. That’s not flexibility.”

    “By trying to make the Constitution do everything that needs doing from age to age, we shall have caused it to do nothing at all.” (Scalia & Gutmann, 1998)

    Referring to his notion of the dead Constitution, Justice Scalia once said, “that didn’t work, so I invented ‘enduring Constitution’,” and he went on, “Packaging is everything.” 🙂

    Source(s):
    Scalia, A., & Gutmann, A. (1998). A Matter of Interpretation: Federal Courts and the Law. Princeton University Press.

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