[Qdkczrdi]

He dismissed the idea that the constitution is a living document. I normally like Scalia, but I happen to disagree with him on this.


Scalia Dismisses 'Living Constitution'
Scalia criticized those who believe in what he called the "living Constitution."

"That's the argument of flexibility and it goes something like this: The Constitution is over 200 years old and societies change. It has to change with society, like a living organism, or it will become brittle and break."

"But you would have to be an idiot to believe that," Scalia said. "The Constitution is not a living organism, it is a legal document. It says something and doesn't say other things."

[michael247]

The Constitution is a fixed document. Anything that would be added should be added by amendment, not judicial fiat. If something really needs to be changed or added, that's the way to do it, with the consent of the people through their representatives.

Why should some idiot judge on the left coast get to change laws all across the country? He is neither elected nor representative.

[Joircarm]

The Constitution is a fixed document. Anything that would be added should be added by amendment, not judicial fiat. If something really needs to be changed or added, that's the way to do it, with the consent of the people through their representatives.

Why should some idiot judge on the left coast get to change laws all across the country? He is neither elected nor representative.

I've thought the fact that the constitution can be amended is what makes it a living document. Unfortunately, some idiot judge on the left coast gets to interpret the legislation passed by Congress. They don't get to change the law or add to it, but their interpretation could be different than mine. If their interpretation is different then mine, then I might think they are changing the law. If that is the case, I would hope that through the judiciary process the judge's decision will be appealled and a higher court will over turn it and deem the judge's interpretation as unconstitutional.

Supreme Court justices, court of appeals judges, and district court judges are nominated by the President and confirmed by the United States Senate, as stated in the Constitution. Would this process make them representative?

[Fluivelip]

They would be representatives, but not direct representatives of the people. Scalia's point, if I may be so bold as to make a feeble attemt to speak for him, is that the Constitution is fixed, but amendable, and that is the only correct way to do it. The term "Living Constitution" rankles me because that implies that it is constantly changing, which it is not. I think the proper term would be "Overreaching Judiciary".

[Faungarne]

copied this thread to a new section

[poonnassunlix]

They would be representatives, but not direct representatives of the people. Scalia's point, if I may be so bold as to make a feeble attemt to speak for him, is that the Constitution is fixed, but amendable, and that is the only correct way to do it. The term "Living Constitution" rankles me because that implies that it is constantly changing, which it is not. I think the proper term would be "Overreaching Judiciary".

It's not that is it constantly changing, but rather that it has the constant ability to change. I think that is the difference.

[economex]

Yeah but that doesn't make it a living breathing thing! Its still a document and the judgement has to be passed by the judge or justice in accordance with what the document read's at the time, i.e. what it says!

Even though it has the ability to change when its interpreted at that point its not changing, it'd be applied in the form that its in whenever its called into use, i.e. when a case is brought up or tried or something.

[acceraStoof]

No, Scalia has barely gone far enough.

I believe he refers to people who twist phrases in the Constitution to mean something very different from what the people who wrote and ratified it, intended. Obvious examples are the Kelo case which presumed that governments could take property for PRIVATE usage instead of the public usage allowed by the 5th amendment, and the U.Mich case where the SUpremes ruled that racial discrimination was OK in certain college admissions, and even that a timetable for phasing it out was somehow constitutional. There are many more examples.

Most of such twists, are attempts to give the Federal government far more power than the Framers ever intended. Scalia is against doing that. For this reason, he is a classic conservative. And as it happens, he is NOT a judicial activist, since the conservatism he espouses, happens to match perfectly the conservatism inherent in the Constitution itself.

[AccusaJalsBub]

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.

[yovbQVpD]

Obvious examples are the Kelo case which presumed that governments could take property for PRIVATE usage instead of the public usage allowed by the 5th amendment

Kelo is one of the few cases where I agree wholeheartedly with scalia. Kelo, however, is not a case of judicial activism since the majority decided the court has no right to second guess the legislature on the meaning of "public use". Scalia concurred with O'Connor's dissent which said

"But were the political branches the sole arbiters of the public-private distinction, the Public Use Clause would amount to little more than hortatory fluff. An external, judicial check on how the public use requirement is interpreted, however limited, is necessary if this constraint on government power is to retain any meaning"

so I suppose if one side in this were to be labeled "judicial activism" it would be the minority.

[LymnInvinny]

No, Scalia has barely gone far enough.

I believe he refers to people who twist phrases in the Constitution to mean something very different from what the people who wrote and ratified it, intended.

The members of the delegation did not take notes of their discussion intentionally to avoid citation to the arguments. Hence, to claim to know their minds as Scalia does seems too presumptuous. What is known is that members had different ideas and fought regularly over the terms they adopted but put down the concepts. This was common practice then and now. Many of the framers were British common law attorneys and all were familiar and followers of the system, which bases itself precisely on using legal principles of flexibility of established concepts rather than Continental rigidity of laws as with the Prussians, French, etc. Even statutes are written that way, never mind constitutions. The Anglo-American legal concepts are designed to breathe unlike other European Continental and similar Code systems.

For example, simple and common criminal laws like my state's Disorderly Conduct statute contain the same style:

§ 5503. Disorderly conduct.
(a) Offense defined.--A person is guilty of disorderly conduct if, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he:

1) engages in fighting or threatening, or in violent or tumultuous behavior;
2) makes unreasonable noise;
3) uses obscene language, or makes an obscene gesture; or
4) creates a hazardous or physically offensive condition by any act which serves no legitimate purpose of the actor.

These are flexible words, and common sense and community standards are used to determine what constitutes a violation. What people determine are violations of these words changes over the decades depending on those factors. This is intentional, and is meant to be that way so the law is flexible thus not requiring frequent and cumbersome amendments and to get fair results in an ongoing fluid fashion.

Obvious examples are the Kelo case which presumed that governments could take property for PRIVATE usage instead of the public usage allowed by the 5th amendment, . . .

Again, not having notes of testimony, it is impossible to tell who believed what, and humans being what they are, they often disagree on details, which is why general concepts are often selected to forge an agreed framework for courts and the public to decide.

But if the times are to be taken into consideration, it would seem to support New London's position. The law at the time was that the British Crown held all property on behalf of the public and could give away and take land freely. The clause put 'public use' in there, but it was the sovereign who always made the determination what was sufficient cause to take property for the government's purposes for a 'public use' in its sole discretion. That could include any reason at that time which it alone could decide was sufficient reason for itself, such as what New London did (raising better tax revenue for the public). The key factor was the 'just compensation part' that British law did not have given the government at that time often did not adequately pay people for taken property.

. . .and the U.Mich case where the SUpremes ruled that racial discrimination was OK in certain college admissions, and even that a timetable for phasing it out was somehow constitutional. . . .

The original framers allowed racial discrimination even as an institutional practice, and laws regularly discriminated on numerous factors. As to blacks and Affirmative Action, if originalism was to be followed, the Civil War Amendments Framers specifically advocated Affirmative Action principles rather than repudiated them. '40 Acres and a mule', black colleges, the Freedman's Bureau, etc were all examples of racial preference towards blacks by the government.

Most of such twists, are attempts to give the Federal government far more power than the Framers ever intended. Scalia is against doing that. For this reason, he is a classic conservative. And as it happens, he is NOT a judicial activist, since the conservatism he espouses, happens to match perfectly the conservatism inherent in the Constitution itself.

I've seen this approach as the opposite of that--it is Toryism of the British style rather than old style Republican politics (libertarianism) that advocated construing the Constitution in a light most favourably to the public right to be free from government. This Scalia approach construes the Constitution most narrowly and most favourably towards the government and its ability to pass laws and exercise power over the people rather than give the people freedom from government. It seems apparent to me, if anything, that the original framers were people who wanted to depart from the British style of Toryism and create a government of limited servants with lots of checks and balances internally so the people could get the most freedom from it exercising alot of power. There would have been no real reason to leave King George III and Parliament under Scalia's approach for societal reasons given that is more or less what they did.

[Maphpseurse]

He dismissed the idea that the constitution is a living document. I normally like Scalia, but I happen to disagree with him on this.

This kind of does beg the question here though that in the 15+ years he's been sitting on the court didn't you figure out the fact that he's a strict constructionist who believes in interpretting the constitution as its written and not as a living breathing thing? (I didn't mean that in an insulting way by the way).

The right hails him as one of the great SCOTUS justices in history and every single judge that's ever nominated to the federal bench by this President is percieved to be in the mould of Scalia by the right.

The President even ran on a campaign pledge of nominating strict constructionist conservative judges in the mould of Scalia (and Thomas) who would strictly interpret the constitution for what it was written.

[HenriRow]

I've thought the fact that the constitution can be amended is what makes it a living document.

If that's your concern, I don't think you have any reason to worry. I don't believe Justice Scalia was saying that the Constitution can't be amended.

[Qdcqxffs]

O'Sullivan Bere
The original framers allowed racial discrimination even as an institutional practice, and laws regularly discriminated on numerous factors. As to blacks and Affirmative Action, if originalism was to be followed, the Civil War Amendments Framers specifically advocated Affirmative Action principles rather than repudiated them. '40 Acres and a mule', black colleges, the Freedman's Bureau, etc were all examples of racial preference towards blacks by the government. You're exactly right! An originalist would interpret the 14th amendment as encompassing a variety of governmental actions targeted at providing for former slaves. Now, if you can point to some former slaves around today I would be happy to talk about the government programs we should specifically target to them.

Scalia's basic premise is that--to the extent that there are "vague" parts of the Consitution that were left to future generations to "interpret"--the most appropriate body for that is the legislature (being more representative of "the people" than the courts) and that this would actually call for far GREATER deference to the elected branches of government on these parts of the Consitution.

Prime example is Cruel and Unusual Punishment and the Death Penalty. There is absolutely NO question that the death penalty was foreseen and permitted under the Constitution, and therefore cannot be understood to be considered "Cruel and Unusual" punishment as that was understood at the time of the founding.

Now, Scalia would say that this is a fiat complete as far as he is concerned, the text clearly permits it, end of discussion; but Scalia would go further and argue that even if you believe in a "living" Consitution that should change to reflect the circumnstances and values of contemporary society, that the body that breathes this "life" is NOT the unrepresentative courts, but the elected branches. Who better than the representatives of the people to determine what THE PEOPLE consider cruel and unusual punishment than the representatives of the people?

[amusaasyday]

You're exactly right! An originalist would interpret the 14th amendment as encompassing a variety of governmental actions targeted at providing for former slaves. Now, if you can point to some former slaves around today I would be happy to talk about the government programs we should specifically target to them.

But that wasn't the situation and purpose back then. In fact, it has a much earlier history and diversity of practice. For example, Indian schools were established during colonial periods and they continued during and following the Constitution in its original state. Black schools and colleges existed before the Civil War and not just for ex-slaves. For example, I have two 'black colleges' near me. One is Cheney University (then known as the Institute for Colored Youth) that was founded in 1937. The other is Lincoln University that was founded in 1954. And this is in Pennsylvania--a free state. Being an ex-slave was never a qualification. In fact, pre-war free blacks and post-war descendants of ex-slaves who managed to get some financial means were the most likely to attend such schools. Back then, some liberal whites (as progressive was thought back then) often felt it was a moral and religious duty to educate blacks and Indians. Some of them were way ahead of their time by believing that they were equal in all respects. Others had a more patronising view that it was a duty to help them given their presumed lower abilities than whites but also wanted such institutions created so they would not be in 'white schools', i.e., mixing with them whilst not leaving them so uneducated so as to be a burden on society. This fractiousness was apparent even from those who helped ratify the Civil War Amendments. Many were segregationists of the Plessy thought (separate but equal), a few were integrationists, and the Southern states largely ratified the amendments out of compulsion given they lost the Civil War but had no intent on ever honouring them--hence the 'black codes' first followed by Plessy v. Ferguson that adopted the middle road approach with its 'separate but equal' compromise and Jim Crow and the utter neglect of even 'separate but equal' compromises.

Scalia's basic premise is that--to the extent that there are "vague" parts of the Consitution that were left to future generations to "interpret"--the most appropriate body for that is the legislature (being more representative of "the people" than the courts) and that this would actually call for far GREATER deference to the elected branches of government on these parts of the Consitution.

I respectfully see that as an inexcusable abdication of the mandatory role of the judiciary to interpret the written law and make law in its absence that forms the basis for Anglo-American legal construction as well as the independent role of the judiciary as the third branch of government in the constitution itself.

At all times in this nation from its beginning, this nation has carried forth the British heritage of an independent judiciary that interprets the law and in the absence of express law, create the law through case law ('common law'). Most of the common statutory criminal and civil laws had their origination in court-made law ('common law') from the British Courts and the Church Courts. This includes common things such as murder, manslaughter, trespass, assault, larceny (theft), etc. They were all called 'common law' crimes as they were created by the courts, not the legislature, upon people bringing wrongdoings before the court seeking redress. They were later made into statutes with any modifications sought and new laws added.

It's been the same in civil law. Alot of the basic concepts of family law, property law, etc, come from the same thing--common law from the British Courts and Church courts. When the US became independent, the British laws and its heritage was kept and adopted, and following independence, British legal and case developments were regularly cited by our courts as persuasive authority (a common law tradition is that cases and laws from other jurisdictions can be cited and argued for persuasive value) through the 1800s as American courts developed their own conclusions.

Insofar as legislative power, common law (judge made law) can be overruled by statute. However, any statutes are to be interpreted by the courts. If an interpretation is not liked, or the statute is flawed in accomplishing its intended objective (alot have loopholes, etc), statutes can be enacted or amended to get the result sought. Statutes, however, are subordinate to the constitution, and the court is also obligated to construe the constitution and whether statutes--naturally subordinate to the constitution--comply with it.

Constitutional amendments may be ratified to set anything the people desire in stone. For example, the 11th Amendment, the Civil War Amendments, and the 16th Amendment were done to overrule court interpretations of the constitution as it was written beforehand. Hence, the people always have the ultimate control because they control the constitution and what gets added and what gets excluded.

Prime example is Cruel and Unusual Punishment and the Death Penalty. There is absolutely NO question that the death penalty was foreseen and permitted under the Constitution, and therefore cannot be understood to be considered "Cruel and Unusual" punishment as that was understood at the time of the founding.

Sure it can, because they only wrote a concept, not a defined scope of parameters. And that is standard practice and procedure in a common law society in which the writers were practicioners themselves.

Take a look back at my first post where I cited an example of how this is so regularly done. Laws from the constitution, statutes, and common laws are generally written in loose breathing language to be flexible and allow evolution, with things only specified when there is firm agreement that something should not be done. And this approach--from those societies using the common law style--is intended to be that way to leave an open and flexible society that can move in its own way in a fluid fashion.

It is a specific rejection of the Code systems elsewhere, where library stacks of coding is preferred right down to how to tie your shoelaces, which to the followers of the common law tradition is an inflexible and cumbersome lockdown of government legislating of the people, and requires constant re-evaluation and amendments to get ordinary things, pitfalls and evolutions of thought enacted. And under our system, the people are always free to amend the constitution to make acceptance of the death penalty specifically allowed if they feel that strongly that it should always be so.

Now, Scalia would say that this is a fiat complete as far as he is concerned, the text clearly permits it, end of discussion; . . .

The text cannot clearly permit it given it never mentions the death penalty at all.

. . . but Scalia would go further and argue that even if you believe in a "living" Consitution that should change to reflect the circumnstances and values of contemporary society, that the body that breathes this "life" is NOT the unrepresentative courts, but the elected branches. Who better than the representatives of the people to determine what THE PEOPLE consider cruel and unusual punishment than the representatives of the people?

I respectfully refer to my replies above that address most of this, but the last sentence is a key area where I depart from him as well.

The legislators are not anymore close to "the People" than the judiciary is. In fact, I would argue that the courts who regularly deal with all the plights and arguments and pitfalls of the people who come before them every day for hours on end have far more connection to the People than the legislators who seem more concerned rolling around with their lobbyists getting earmarks.

WE are the people, the average citizens of the United States. Not one legislator or judge gets their position except pursuant to the People's directives pursuant to our constitution, which is by our instruction and consent. They are all collectively public servants of the People with a specified duty.

The court is representative because the members are put there through a constitutional process that we the People set up, and through members that the People elected (the POTUS who picks them and Congress with its 'advise and consent'). We the People are free to alter or amend that process in our constitution anytime we see fit to do so.

If 'unelected' is an issue, then it is up to us as the People to amend the constitution to change the process to allow elections for them. My state elects judges pursuant to the state constitution because that is how we the People of Pennsylvania mandate it. On the federal level, if the People of the nation desire judges to be likewise elected directly instead of the current process, then it can be added. But if that is really desired, then it should be done by amending the constitution. But blaming judges for the situation that the people mandate, to me, is chutzpah.

And insofar as politicians wanting the courts to defer to them, the Constitution was written for the People's benefit, not theirs. We wanted them on a short leash instead. Another major problem I have with originalism is that the drafters did not take notes of testimony so it is presumptuous to know their minds, but what was written later is that they disagreed alot and settled on concepts. Writings afterwards do show that they did not trust the Congress they were creating and wanted these checks and balances. All I see from these arguments today by them is a bloated power pig wanting more power and control (Big Brother/Big Spender). I'd rather see those power pigs on a diet instead.

[MicoSiru]

I am glad that Crystal ran this thread, because I am the first to admit that I find this issue rather difficult to grasp in its entirety. Crystal is making the point that the Constitution is living because it can be amended; that is obviously true, so Scalia must mean something else in his statement. I had assumed that constructionists are intent upon holding to the original meaning of the founders to the greatest extent possible.

This my understanding of the conservative critique (as a non-lawyer ): In the years since the nineteen fifties, a primarily left wing judicial system has understood the constitution to be a malleable and plastic instrument, rather than a series of settled statements; this instrument is to be used to create a society that reflects leftist policies and implements those policies in such a way as to make the constitution both creator and defender of a left wing society. The flexibility of the Constitution has been interpreted as a license to ignore its original meaning; it is up to Conservatives, with a concern for truth and a regard and respect for the past, to turn away from - and againt - this understanding of the constitution.

The failure to address this issue during the Alito hearings was quite frustrating for me. I do not know enough about this - it is outside my profession, and outside of my training - I was hoping for some serious discussion regarding Alito's views. Instead, we had a senate circus, complete with clowns.

Sorry, back to Scalia.....