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**AccusaJalsBub** · 02-17-2006, 11:55 PM

Scalia is using the term "living constitution" as a pejorative here, and implying that anyone who disagrees with his own interpretation is trying to expand constitutional language to match a desired outcome. Robert Bork is the one who first popularized the phrase, but he (at that time) freely admitted that the judicial activism frequently equated with the "living constuitution" view was a nonsectarian failing.

The actual argument that the opponents of "strict constructionists" or "originalists" make is that many parts of the constituion are vaguely worded on purpose, and must be interpreted in light of conditions in force at the present time.

The eighth amendmant says "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." The definition of "excessive" or "cruel and unusual" might be different now than in 1791.

In Sect 8 describing congressonal power the phrase "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;" has generated controversy because the definition of "commerce" is claimed by some to be fungible. In fact this commerce clause is at the root of many of the court decisions that make bork and scalia see red.

The fourth amendment guarantees "The right of the people to be secure in their persons". Scalia would accuse those who interpret this to allow abourtion and various other sexual and reproductive rights of believing in a "living constitution." Justice Breyer, however, calls this interpretation an example of "active liberty" which demands interpretation of vague or loosely worded articles in a way that enhances the people's freedom to govern their own behavior.

Scalia is certainly no paragon when it comes to judicial activism. He dissented from the decision which struck down anti-homosexual laws in texas because he doesn't see a specific "right to homosexual activity" in the wording of the constitution. Homosexuality is anathema to scalia personally and he makes no bones about interpreting the constituion to match his personal preferences. He had no problem, either, in contradicting years of "originalist" rhetoric when it came time to appoint w president.

02-17-2006, 11:55 PM	#9
AccusaJalsBub Join Date Oct 2005 Posts 550 Senior Member	Scalia is using the term "living constitution" as a pejorative here, and implying that anyone who disagrees with his own interpretation is trying to expand constitutional language to match a desired outcome. Robert Bork is the one who first popularized the phrase, but he (at that time) freely admitted that the judicial activism frequently equated with the "living constuitution" view was a nonsectarian failing. The actual argument that the opponents of "strict constructionists" or "originalists" make is that many parts of the constituion are vaguely worded on purpose, and must be interpreted in light of conditions in force at the present time. The eighth amendmant says "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." The definition of "excessive" or "cruel and unusual" might be different now than in 1791. In Sect 8 describing congressonal power the phrase "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;" has generated controversy because the definition of "commerce" is claimed by some to be fungible. In fact this commerce clause is at the root of many of the court decisions that make bork and scalia see red. The fourth amendment guarantees "The right of the people to be secure in their persons". Scalia would accuse those who interpret this to allow abourtion and various other sexual and reproductive rights of believing in a "living constitution." Justice Breyer, however, calls this interpretation an example of "active liberty" which demands interpretation of vague or loosely worded articles in a way that enhances the people's freedom to govern their own behavior. Scalia is certainly no paragon when it comes to judicial activism. He dissented from the decision which struck down anti-homosexual laws in texas because he doesn't see a specific "right to homosexual activity" in the wording of the constitution. Homosexuality is anathema to scalia personally and he makes no bones about interpreting the constituion to match his personal preferences. He had no problem, either, in contradicting years of "originalist" rhetoric when it came time to appoint w president.
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