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.
- “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.
(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.
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.
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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