One major theme of this site is that the US Constitution is dying, if not actually dead. Here we see a first-tier legal scholar support this theory. This has become Justice Scalia’s best known saying, perhaps his signature line: “The Constitution that I interpret and apply is not living, but dead.” I recommend attention to his warnings. At the end are links to other posts about this theme.
Contents
- “God’s Justice and Ours“, Antonin Scalia, First Things (A Monthly Journal of Religion and Public Life), May 2002
- “Vigilante Justices: The Dying Constitution”, Antonin Scalia, National Review, 10 February 1997
- “Law and Justice with Antonin Scalia”, Interview with Justice Scalia, Hoover Institute, 23 February 2009
- A Matter of Interpretation: Federal Courts and the Law an Essay, Book by Antonin Scalia, Amy Gutmann, Gordon S. Wood, Laurence H. Tribe, Mary Ann Glendon, Ronald Dworkin; Princeton University Press, 1997
- Afterword and for more information.
For more information about Justice Scalia, see his Wikpedia entry.
Excerpts
(1) From “God’s Justice and Ours“, Antonin Scalia, First Things (A Monthly Journal of Religion and Public Life), May 2002 – Here is the first use of this phrase, but in a different meaning. Here he uses “the Constitution is dead” in a positive sense, meaning fixed and enduring — as opposed to living and ever-changing. But the words echoed in the minds of Americans, evoking buried fears about the drift of America. Excerpt:
Before proceeding to discuss the morality of capital punishment, I want to make clear that my views on the subject have nothing to do with how I vote in capital cases that come before the Supreme Court. That statement would not be true if I subscribed to the conventional fallacy that the Constitution is a “living document” — that is, a text that means from age to age whatever the society (or perhaps the Court) thinks it ought to mean.
In recent years, that philosophy has been particularly well enshrined in our Eighth Amendment jurisprudence, our case law dealing with the prohibition of “cruel and unusual punishments.” Several of our opinions have said that what falls within this prohibition is not static, but changes from generation to generation, to comport with “the evolving standards of decency that mark the progress of a maturing society.”
… If I subscribed to the proposition that I am authorized (indeed, I suppose compelled) to intuit and impose our “maturing” society’s “evolving standards of decency,” this essay would be a preview of my next vote in a death penalty case. As it is, however, the Constitution that I interpret and apply is not living but dead — or, as I prefer to put it, enduring. It means today not what current society (much less the Court) thinks it ought to mean, but what it meant when it was adopted.
For me, therefore, the constitutionality of the death penalty is not a difficult, soul-wrenching question. It was clearly permitted when the Eighth Amendment was adopted (not merely for murder, by the way, but for all felonies — including, for example, horse-thieving, as anyone can verify by watching a western movie). And so it is clearly permitted today.
There is plenty of room within this system for “evolving standards of decency,” but the instrument of evolution … is not the 9 lawyers who sit on the Supreme Court of the United States, but the Congress of the United States and the legislatures of the fifty states, who may, within their own jurisdictions, restrict or abolish the death penalty as they wish.
(2) “Vigilante Justices: The Dying Constitution”, Antonin Scalia, National Review, 10 February 1997 — (free version here). Excerpt:
In the last analysis, however, it probably does not matter what principle, among the innumerable possibilities, the evolutionist proposes to use in order to determine in what direction The Living Constitution will grow. Whatever he might propose, at the end of the day an evolving constitution will evolve the way the majority wishes. The people will be willing to leave interpretation of the Constitution to lawyers so long as the people believe that it is (like the interpretation of a statute) essentially lawyers’ work — requiring a close examination of text, history of the text, traditional understanding of the text, judicial precedent, and so forth.
But if the people come to believe that the Constitution is not a text like other texts; that it means, not what it says or what it was understood to mean, but what it should mean, in the light of the “evolving standards of decency that mark the progress of a maturing society” — well, then, they will look for qualifications other than impartiality, judgment, and lawyerly acumen in those whom they select to interpret it. More specifically, they will look for judges who agree with them as to what the evolving standards have evolved to; who agree with them as to what the Constitution ought to be.
… The American people have been converted to belief in The Living Constitution, a “morphing” document that means, from age to age, what it ought to mean. And with that conversion has inevitably come the new phenomenon of selecting and confirming federal judges, at all levels, on the basis of their views regarding a whole series of proposals for constitutional evolution. If the courts are free to write the Constitution anew, they will write it the way the majority wants; the appointment and confirmation process will see to that. This, of course, is the end of the Bill of Rights, whose meaning will be committed to the very body it was meant to protect against: the majority. 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.
(3) “Law and Justice with Antonin Scalia”, Interview with Justice Scalia, Hoover Institute, 23 February 2009 — Video; transcript. Excerpt:
Look, I do not propose or suggest that originalism is perfect. And provides easy answers for everything. But that’s not my burden. My burden is just to show that it’s better than anything else. And the originalist has easy answers for many things. Especially the most controversial things in modern times.
Whether, whether the equal protection clause requires that the states permit same sex marriage. I mean you know that’s not a hard question for an originalist. Nobody ever thought that’s what the equal protection clause meant. And it didn’t mean that when it was done. But it doesn’t mean that today. It doesn’t change to mean that just because the Supreme Court thinks it’s a good idea.
Whether, whether there’s a right to abortion. For Pete’s sake it was criminal in every state for 200 years. Now if you want a right to abortion, create it the way most rights are created in a democracy. Persuade your fellow citizens it’s a good idea and enact a law. But don’t tell me the Constitution confers such a right.
So I, I have easy answers to a lot of stuff. Whereas, whereas, for the living Constitutionalist, there are no answers. Every day is a new day. I have sat with four colleagues, one’s still on the court, three since deceased, who thought that the death penalty was unconstitutional. It’s mentioned in the Constitution. But every day’s a new day and you know, it used to be, it used to be unconstitutional. Maybe tomorrow it won’t be.
(4) A Matter of Interpretation: Federal Courts and the Law an Essay, Book by Antonin Scalia, Amy Gutmann, Gordon S. Wood, Laurence H. Tribe, Mary Ann Glendon, Ronald Dworkin; Princeton University Press, 1997. Excerpt:
The first year of law school makes an enormous impact upon the mind. Many students remark upon the phenomenon. They experience a sort of intellectual rebirth, the acquisition of a whole new mode of perceiving and thinking. Thereafter, even if they do not yet know much law, they do — as the— “think like a lawyer.”
The overwhelming majority of the courses taught in that first year, and surely the ones that have the most profound effect, teach the substance, and the methodology, of the common law — torts, for example; contracts; property; criminal law. American lawyers cut their teeth upon the common law. To understand what an effect that must have, you must appreciate that the common law is not really common law, except insofar as judges can be regarded as common. That is to say, it is not “customary law,” or a reflection of the people’s practices, but is rather law developed by the judges.
… This is the image of the law — the common law — to which an aspiring American lawyer is first exposed, even if he has not read Holmes over the previous summer as he was supposed to. He learns the law, not by reading statutes that promulgate it or treatises that summarize it, but rather by studying the judicial opinions that invented it. This is the famous case-law method …
… this system of making law by judicial opinion, and making law by distinguishing earlier cases, is what every American law student, every newborn American lawyer, first sees when he opens his eyes. And the impression remains for life. His image of the great judge — the Holmes, the Cardozo — is the man (or woman) who has the intelligence to discern the best rule of law for the case at hand and then the skill to perform the broken-field running through earlier cases that leaves him free to impose that rule: distinguishing one prior case on the left, straight-arming another one on the right, highstepping away from another precedent about to tackle him from the rear, until (bravo!) he reaches the goal — good law. That image of the great judge remains with the former law student when he himself becomes a judge, and thus the common-law tradition is passed on.
All of this would be an unqualified good, were it not for a trend in government that has developed in recent centuries, called democracy. … Consider the compatibility of what Madison says in that number with the ancient system of lawmaking by judges. Madison quotes Montesquieu (approvingly) as follows: “Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for the judge would then be the legislator.”
… once we have taken this realistic view of what common-law courts do, the uncomfortable relationship of common-law lawmaking to democracy (if not to the technical doctrine of the separation of powers) becomes apparent.
Afterword
Please share your comments by posting below. Per the FM site’s Comment Policy, please make them brief (250 words max), civil, and relevant to this post. Or email me at fabmaximus at hotmail dot com (note the spam-protected spelling).
For information about this site see the About page, at the top of the right-side menu bar.
For more information from the FM site
To read other articles about these things, see the FM reference page on the right side menu bar. Of esp interest are:
Posts about the Constitution and our government:
- Forecast: Death of the American Constitution, 4 July 2006
- The Constitution: wonderful, if we can keep it, 15 February 2008
- Congress shows us how our new government works, 14 April 2008
- See the last glimmers of the Constitution’s life…, 27 June 2008
- Remembering what we have lost… thoughts while looking at the embers of the Constitution, 29 June 2008
- A report card for the Republic: are we still capable of self-government?, 3 July 2008
- Another step away from our Constitutional system, with applause, 19 September 2008
- What comes after the Consitution? Can we see the outlines of the “Mark 3″ version?, 10 November 2008
- Are Americans still willing to bear the burden of self-government?, 27 March 2009
- “Lights, Camera, Democracy” by Lewis Lapham, 24 May 2009
I wonder, FM, if you feel that Brown v. Board of Education was rightly decided? It is a landmark decision, and I feel one of the shining moments of the Court, but surely it isn’t compatible with a dead document. I agree with you that Constitutional interpretation ought not to be different from day to day, but this is merely attacking a straw man, nobody is trying to read things into the Constitution that aren’t there.
Here’s an interesting article you ought to read by Dr. Saby Goshray 69 AlbLR 709 :
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Fabius Maximus replies: For this discussion the “rightness” of individual court discussions is not relevant. I admire many of the actions of King William I of England, but that does not mean I wish to live in a monarchy.
The quote you give is from “To understand foreign court citation: dissecting originalism, dynamism, romanticism, and consequentialism“, Saby Ghoshray, Albany Law Review, Summer, 2006. IMO it is absurd, totally missing the point.
The Constitution is not alive. It’s paper, setting forth rules we live by. The citizens are alive, and retain the ability to change it’s application by legislation (through their elected representatives) and its text by ammendment. The citizens, not judges. We call this system democracy. Rule by judges acting as priest-kings is a different kind of system.
Legislators and citizens get the form of government to which they rise. If they rise to the occasion, remain vigilant and diligent, and amend the constitution and the laws to reflect their current standards and priorities, the makeup of the supreme court is largely irrelevant. If they become so cowardly and complacent that trying to get a majority vote or a 2/3’s vote for their highest priorities is too much effort, they become subjects of the whims of a small group of lawyers with power for life.
Nice dodge, FM, but you I would have been more impressed if you were at least intellectually honest enough to admit that your own principles dictate that Brown was wrongly decided.
Apologies to Dr. Ghoshray for the typo.
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Fabius Maximus replies: I am not an attorney, nor have much knowledge about Constitutional law at that level of detail. Unlike many on the Internet, I don’t spout opinions on every topic.
“impressed if you were at least intellectually honest enough to admit that your own principles dictate that Brown was wrongly decided.”
Not only is that statement wrong, it is one of the most arrogant statements I have seen on this site. In my opinion (since you raise the question is such a personal way), drawing on my sketchy legal knowledge of these things, racial segregation is a straightforward violation of the 14th ammendment. As Clarence Thomas wrote in Missouri v. Jenkins (1995):
For more on this see the Wikpedia entries on Brown vs. Topeka Board of Education and Missouri v. Jenkins.
Strabo-
Dr. Ghoshray is supporting a joke. The Constitution was not created for the purpose of “illumination of broader social purposes.” Certainly tired phrases such as these will not be found in the Preamble to the document. If the law is to moved away “eighteenth century social convictions” then it is the job of the citizens to bring about this reform! The role of the judiciary is to judge cases under the law, not to create new ones!
I remained astonished at the high number of truly intelligent people who cannot grasp this very simple concept.
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Fabius Maximus replies: Nicely said!
For what it is worth, Learned Hand, one of the most distinguished jurists in American history, thought Brown v. Board was wrongly decided.
What is more to the point is that history is simply not something fixed in granite; rather is itself in flux. Our understandings and interpretations of the past are subject to change due to new interpretations and discoveries. Our understanding of history itself “morphs” from generation to generation; so to peg the constitution on history would be subject to the same fluidity.
Everybody, right now, go off and learn a programming language. It’s a quick way to get at this point: the whole living/dead dichotomy is a bugaboo. An improved way to look at the question is static vs. dynamic. The essential, inalienable rights of man and responsibilities of government are static.
For example, the static concept of national defense requires dynamic re-interpretation in the face of technology, or suddenly the Air Force is un-Constitutional (?). So, program something. The tool doesn’t matter. The mental exercise of grasping the static and dynamic information highlights a crucial point: confusion about these is a powerful weapon in the hands of those who’d trick Americans into swapping freedom of action for freedom from fear. Justice Scalia understands the static principles, defends them vigorously, and I love him for it.
The debate that you are wading into has nothing to do with whether or not our constitutional rights have been degraded over the last X years. The debate is very simple. There are certain judged appointed or elected because they are “conservative,” and to them the Constitution should be “strictly construed.” These judges claim special insight into the minds of the “founders,” who apparently were able to anticipate the application of the constitution, written in 1776, to the modern era. Interestingly, the founders always seem to support “conservative” positions on the constitutional issues of the day.
In my opinion, the common law (i.e. law by precedent), is a good thing. Applying the “law” (which is just a set of black and white rules), to complex factual situations requires flexibility. Moreover, the legislature cannot legislate for every situation. I could go on at length in this vein, but note that in law and economics theory, the common law normally leads to the most efficient result. Practically, it is also important to note that the complained about behavior, “new” constitutional rights, and overruling the legislature, etc. happen very rarely.
Ultimately, while I agree with your point, that the legislature should enact change, I do not agree that the court system has seized power or is a problem. Moreover, while “strict constructionists” think there are clear and easy answers to things, it is simply not the case. The 14th Am. says “no state shall … deny to any person within its jurisdiction the equal protection of the laws.” Does this not mean, then, that homosexuals should have the same right to marry as heterosexuals? While I don’t deign to know the answer, it certainly is a legitimate question to be decided by the court. In my opinion, the fact that no one thought of homosexuals when the law was passed 100 years ago does not automatically mean that they are not included.
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Fabius Maximus replies: You attribute to Scalia some things he specificially denies in these excerpts.
(1) “Moreover, while “strict constructionists” think there are clear and easy answers to things, it is simply not the case. ”
In excerpt #3 he says the following:
(2) “These judges claim special insight into the minds of the “founders,” who apparently were able to anticipate the application of the constitution, written in 1776, to the modern era.”
Scalia says almost the exact opposite. First, the process of understanding the meaning of the words requires work and debate — to which he never claims special understanding. Second, he does not claim any special ability to understand these words — the value of language is that it can be understood by all, as illuminated by research about the text. Third, judging is the application of those words to changing circumstances — which is why it is difficult work.
Nice discussion. . . a tempest in a teapot! Evidently, the make-up of the court is a political phenomenon, reflecting public opinion expressed in elections, just like the legislature, only a slower changing one. The Supreme Court is and is meant to be a drag on the whims of the electorate, just as the Senate is, but it is not an absolute barrier to them.
Scalia’s argument is an evasion of the bigger questions of the day — whether the supreme court has become just another tool of the executive (Gore vs State of Florida, 2000), whether the executive has too much power or too little, whether Congress has abdicated its oversight responsibilities, whether the electoral system has been corrupted by money.
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Fabius Maximus replies: This seems an odd critique.
“a tempest in a teapot … Scalia’s argument is an evasion of the bigger questions of the day”
Scalia is not “evading” anything. You are in effect saying telling experts that “You must write only about issues that I, senecal, the master decider, consider vital!” Prepare yourself for some rude responces.
FM: “Scalia says almost the exact opposite. First, the process of understanding the meaning of the words requires work and debate — to which he never claims special understanding. Second, he does not claim any special ability to understand these words — the value of language is that it can be understood by all, as illuminated by research about the text. Third, judging is the application of those words to changing circumstances — which is why it is difficult work.”
Point No. 1. Plato, in the Phaedrus discusses how written words are inherently ambiguous, hence deceptive. Hence, they are particularly useful for charlatans.
Second, most of the Framers were Freemasons. If we were to imbue the Constitution with their religious beliefs, the results would be indeed interesting.
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Fabius Maximus replies: Thanks (again!) for providing a historical perspective. The debate has raged for ages between those who prefer a government of laws vs. one of men. As we see in “The Republic”, Plato prefers the latter — a tyranny ruled by folks (surprise!) just like him. Philosopher-Kings. What did Aristotle says about this?
For millenia western political theory has moved, with fits and starts, in the opposite direction. The 10 laws of Moses. The tablets of law in the Forum of Rome. Magna Carta. The Consitution of the United States.
As we regress to sheep, its only natural that we find a government of laws too difficult to operate. So much easier to allow shepherds to rule us!
The law is supposed to be the Law, otherwise it means nothing. Scalia states this plainly.
It seems those who are the least tolerant want to rule through judicial decisions so that what they believe does not face public scrutiny. Abortion, gay marriage are all cases that the Federal Constitution has no authority. But instead of going through the process that is provided, and possibly lose, it’s much easier to go through the judiciary and have your preference imposed. I don’t like this from either side of the political spectrum. That is why we have seperate states so people can choose the standards and morals they prefer and live in the state they believe fits them best.
What is sad is that it appears more people don’t want to participate in the system, not because they want someone else to do it but because they are just to lazy to care. It still ends in the same place. We will live by the wim of man and not the rule of law which is by definition tyranny.
As we see in “The Republic”, Plato prefers the latter
There’s the minor matter of a book Plato wrote entitled, “The Laws.”
As for The Republic, Eric Havelock in Preface to Plato explains how Plato was attempting to break away from the pre-literate oral traditions epitomized by Homeric poetry.
That written record is superior to oral tradition is by no means axiomatic. Michael T. Clanchy describes the laborious process by which England came to rely upon written records in From Memory to Written Record: England 1066 – 1307.
Review:
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Fabius Maximus replies: Great comment, as always. I had forgotten about “The Laws.” I will re-read it, as I don’t recall the type of government recommended for the new city of Magnetes.
#6 Makes a crucial, but IMO under appreciated point thus: “An improved way to look at the question is static vs. dynamic. The essential, inalienable rights of man and responsibilities of government are static.”
The analogy for republican government by written constitution is exact. And for me this prompts the question; without the static nature of the Constitution would Brown vs. Board of Education have ever appeared?
The framers (whose minds were and are quite visible, thank you) first bound themselves in the limits of their Constitution. As #6 has it, they created a static set of rules based on a forward-evolving view of humanity (e.g. FM – “For millenia western political theory has moved, with fits and starts, in the opposite direction. The 10 laws of Moses. The tablets of law in the Forum of Rome. Magna Carta. The Consitution of the United States.)” If maintaining the status quo of their supposed power structure was their aim, why bind their own room for arbitrary action? You could assume they knew nothing of the dynamic of history, but you’d be wrong.
The rights position of certain minorities in America was dynamic. That position changed for the better by being legally brought into compliance with the static touchstone. The social adjustments came later—not without pain, but come they did. We cut the static moorings at our peril.
O boy. Go F.M. gogogogo. The United States Constitution is too precious and noble a creation to leave unattended to lawyers, especially now in the degraded state of our politics. It is presently stagnating because the destruction of federalism initiated by the emergency of the Depression and World War 2, was compounded by the emergence of nuclear weapons. Our strategic defense was made problematic, our security via isolation taken from us, we decided fatefully to maintain a great standing army for the first time in our history. It has been a disaster. The exceptional expansion of Executive authority this created was further compounded by that wily criminal LBJ whose Great Society institutionalized the New Deal and converted the States into permanent stewards of Federal rules and programs. LBJ was an old fashioned southern crook with this difference: he seemed to think since he stole all his life, it was only fair that his fellow citizens get a chance to nick a little too. If Obama gets his way, the Republic will die, no chance of recovery. He is a fine man with terrible ideas about government and its possibilities. We need to take our country back from the disgusting ruling class we have created. We can and must reestablish Federalism. Yes, States Rights was a filthy euphemism for quasi-slavery. Race hatred is not extinguished in America but surely we recognize that it has become institutionalized in welfare and medicaid rules. I am for reestablishing the taxing power of the states. We are facing a great struggle that has not even begun and which a majority of Americans today oppose. We Patriots must convince them that their well-being and safety begins in their own hearts and minds, not in Washington.
Speech always evolves in societies in which it is spoken–thus long etymologies, and when you read the word “genius” in the 18th century what was meant was “spirit” not what first comes to modern minds.
When Scalia says that the Constitution is dead insofar as he interprets it, he is saying that the intent of its authors can only be applied to modern developments anachronistically, and thus refuses–sort of–to do that.
But, and this is a major complaint with ole Scalia–he says that he doesn’t want to get outside the intent of the legislators, but refuses, nonetheless, to consider the legislative history of any given statute. So, outside of old dictionaries and the laws of the time, Scalia tends to like to operate in a total vacuum when it comes to the law, excluding all contemporary context from his decision making process–making him a hell of a lot more similar to Derrida than, say, Burke.
In fact, Holmes was much more conservative–in the Burkean sense–than Scalia, who is an ideologue who complains of legislating by the bench as he hits upon a way to completely ignore the democratic process (and history) via his “originalism.”
See also , Sunni vs Shia .
I am neither American nor Constitution expert, but
Does it not look ironic that the importance of the Supreme Court itself was born out of a somewhat “living” or “dynamic” interpretation of the constitution? The programers might find some “meta”-quality to the whole birth process midwifed by John Marshall in an astutely political way …
We are reaping the results of a generation that pushed a “living” Constitution, or the law is anything I imagine it to be, nothing less, nothing more. Can anyone respect such an approach much less system that depends on the whims of judges? Can anyone plan where nothing is firm?
Better trial by combat than death by a thousand cuts.
I think that jury nullification is a corner stone of our common law heritage. Jury nullification occurs when a jury acquits a defendant because they (the jury) deem the law to be unjust. Here’s a good summary: {and Wikipedia}
Here’s a quote tailored for those that oppose jury nullification:
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Fabius Maximus replies: I too believe that it is a powerful tool to preserve our liberties. Like most such, it must be used carefully.
I know I’m late to the party but just felt like adding one thing to this argument. The one major problem I have with how originalists such as Scalia view the Constitution is that looking at the men who had a hand in crafting the document, they disagreed on what was meant (if I’m wrong or off base please correct me, I’m only now digging back into this era). Just to throw out a few examples, the push for a Bill of Rights was due to doubts about the original Constitution’s lack of protection for individuals in most cases. The counter to this was that government would only protect enumerated rights, which bears out to date with how infrequently the 9th and 10th amendments ever get cited, even in cases where they could be applicable. I’m not sure what a better view of the Constitution is, but the Founders were not of one mind on much of anything, so even here there is much interpretation.
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Hello Fabius, I’d just like to call your attention to my most recent post, written partially in reply to this post. You can find it here: “D.C. v. Heller, Roe v. Wade, and the Fallacy of Scalia’s “Textualism””, posted at Respondeat, 23 June 2009.
Keep up the great work with your blog!
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