Monday, March 30, 2009

Scalia Speaks Out

Justice Antonin Scalia last week gave a series of wide-ranging interviews with Peter Robinson of the Hoover Institution.  Audio is available here, thanks to the Federalist Society.  Segment titles include "Why the Constitution 'is not living, but dead,'" "Why originalists have lost so much ground to devotees of a living Constitution," and "Roe v. Wade--and other mistakes of the past 50 years."  Check these out.


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This is a fascinating and enlightening interview.

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 changing on you. 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)

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

Posted by: Saqib Ali | Mar 30, 2009 6:43:22 PM

Thanks for your thoughtful post, Saqib, and for tying the interview to A Matter of Interpretation.


Posted by: Steven D. Schwinn | Mar 31, 2009 10:44:50 PM

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