A Director's Forum with Antonin Scalia, Associate Justice, U.S. Supreme Court
Speaking at a closed meeting attended by Wilson Center scholars, staff, and the media, Justice Antonin Scalia explained his approach to constitutional jurisprudence. He devoted much of his talk to refuting the common notion that the Constitution is a living, evolving document. "The Constitution is not a living organism, for Pete's sake; it's a legal document and like all legal documents, it says some things and it doesn't say others."
Justice Scalia deems himself an "originalist": a judge who interprets the Constitution exactly as the framers intended. He maintains, however, that he is not a strict constructionist. "I do not think the Constitution, or any text, should be interpreted either strictly or sloppily," he said. "It should be interpreted reasonably. I do believe you give the text the meaning it had when it was adopted."
He began his talk by citing a recent Supreme Court death penalty case, Roper v. Simmons, in which he dissented, arguing that the Eighth Amendment does not ban the execution of a convicted criminal under age 18. He said the death penalty was not unconstitutional 200 years ago, even for a minor, and therefore it is not today. By contrast, he said, abortion was criminalized by most of the states 200 years ago but Supreme Court decisions of the last three decades have made state prohibitions on abortion unconstitutional. Those decisions, he argued, are wrong. The electorate can bring about democratic change by putting such issues on the legislative agenda, "but it is not the function of the Constitution to do that."
The Constitution was deliberately designed to be rigid, rather than flexible. "You want the right to abortion? Create it the way most rights are created in a democratic society. Persuade your fellow citizens it's a good idea and enact it. You want the opposite? Persuade them the other way. That's flexibility."
When the early 20th century Supreme Court began using the due process clause of the 14th Amendment to protect the rights of the people against action by the states, Justice Scalia contends, it limited itself to those liberties that were rooted in the traditions of the people. In recent decades, however, the Court has moved away from an emphasis on tradition to read the injunction not to deprive anyone of life, liberty, or property without due process of law as protecting such things as abortion and homosexual sodomy.
"The Court has essentially liberated itself form the text of the Constitution and even from the traditions of the American people," Justice Scalia proclaimed.
The first step in the Court's move to a "living constitution" came in cases such as New York Times v. Sullivan and Gideon v. Wainwright, in which the Court limited the ability of public figures to sue for libel and required the states to provide attorneys for people accused of felonies. It might be a good idea to give the media the right to comment incorrectly about public figures as long as the comments were made in good faith, said Justice Scalia, and if it is, "states could amend their libel laws." But, contrary to Court decisions, this approach to libel cannot be found in the Constitution.
Justice Scalia firmly maintains that the Constitution does not evolve. "If it's a Constitution that changes...you could give it whatever meaning you want and when future necessity arises, you'd simply change the meaning...The Constitution didn't used to mean that, but it does now." He warned of the dangers of rewriting or redefining a constitutional text rather than interpreting it in its original form. "At that point, you've rendered the Constitution useless," he said. "The worst thing about the ‘living Constitution' is that it will destroy the Constitution."
"If you believe that the Constitution is not a legal text if you think the Constitution is some exhortation to give effect to the most fundamental values of the society as those values change from year to year, if you think that it is meant to reflect—-as some of the Supreme Court cases say, particularly those involving the Eighth Amendment—-evolving standards of decency that mark the progress of a maturing society, then why in the world would you have it interpreted by nine lawyers? What do I know about the evolving standards of decency of American society?"
Today, people talk about the need for justices who will interpret the text in a "moderate" way. "There is no such thing as a moderate interpretation of the text," Justice Scalia argued. "Can you draw up a moderate contract?"
Justice Scalia also countered the common argument that the idea of the living Constitution is a partisan one. "Conservatives are willing to grow the Constitution to cover their favorite causes" just as much as liberals are. When he deemed that the Court has overreached, he has dissented in cases that variously favored conservatives and liberals. "It has nothing to do with what your policy preferences are I have my rules that confine me," Justice Scalia said. "When I find the original meaning of the Constitution, I am handcuffed." Such an approach explains why he votes to uphold the right to burn an American flag, "even though I don't like to." He added, "Though I'm a law-and-order type, I can't do all the mean, conservative things I'd love to do to this society."
Some argue that a living document would lead to greater freedom but Justice Scalia disagrees. He cited another recent Court case that examined the practice of permitting judges to make factual determinations before they sentence someone convicted of a crime. Justice Scalia agreed with the Court's holding that the practice violated the right to trial by jury. "The living Constitution, like the legislatures that enacted these laws, would allow sentencing factors to be determined by the judge because all the living Constitution assures you is that what will happen is what the majority wants to happen and that's not the purpose of constitutional guarantees."
The concept of the "living Constitution" is only about 50 years old and Justice Scalia fears what such evolution might bring. "What it is should be troublesome to Americans who care about a Constitution that can provide protections against majority rule." He added, "The Bill of Rights is meant to protect you and me against the majority. My most important function on the Supreme Court is to tell the majority to take a walk."
Drafted by Dana Steinberg and Philippa Strum, director, Division of U.S. Studies