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Scalia Hits the Nail on Head... Several Times

Actually, I'm not a fan of Justices giving speeches like this. While we have enough judicial history to gleen Justice Scalia's judical philosophy, I still think it should remain unspoken or the kind of thing that one says after retirement.

But having said that, Scalia absolutly hits this one out the ballpark.

Scalia dismisses 'living Constitution'

PONCE, Puerto Rico -- People who believe the Constitution would break if it didn't change with society are "idiots," U.S. Supreme Court Justice Antonin Scalia says.

In a speech Monday sponsored by the conservative Federalist Society, Scalia defended his long-held belief in sticking to the plain text of the Constitution "as it was originally written and intended."

"Scalia does have a philosophy, it's called originalism," he said. "That's what prevents him from doing the things he would like to do," he told more than 100 politicians and lawyers from this U.S. island territory.

According to his judicial philosophy, he said, there can be no room for personal, political or religious beliefs.

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."

It really is simple. Why have this document called "The Constitution" if not to use it set some things in stone? If you want something that changes like the latest fashion, don't waste time writing it down.

The people who want the Constitution to be a "living document" just don't like what it says.

And yes, they're idiots.


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Comments (29)

But..but...the second amend... (Below threshold)
bobdog:

But..but...the second amendment is ICKY!

But...but...it's got all those icky references to God and religion and stuff!

But...but...there's no constitutional guarantee of free abortion!

As far as I'm concerned, Supreme Court confirmations should be based on this one question, and it could be emailed in: Will you support the Constitution as written and as intended or will you fantasize a new Living Constitution?

As Walter Williams is fond ... (Below threshold)

As Walter Williams is fond of saying...
"How would you like to play me at poker, but we'll treat the rules as a 'living document'?"

I second Bobdog's proposal for a much-streamlined confirmation process.

To those who think that "Th... (Below threshold)
yetanotherjohn:

To those who think that "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." have obviously never read it.

It includes a way to make changes called amendments. If you think abortion or gay marriage is a vexing issue, read the contortions we went through in the constitution about it and the amendment that stopped it.

The proponets of a "living constitution" aren't really worried about flexibility. They just don't have the fortitude to go through the process to expand the constitution to whatever they think it needs to say. Make a political argument, gather support, convince enough people in the soundness of your ideas and you too can get the constitution to say anything you want it to say. The only limit is the good sense of the voters and their representatives.

I recognize this isn't as easy as just convincing 5 people, but its the rules of the game in this country.

Sorry, posted before proof ... (Below threshold)
yetanotherjohn:

Sorry, posted before proof reading. Comment should have said:

To those who think that "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., they show that they have obviously never read it.

It includes a way to make changes called amendments. If you think abortion or gay marriage is a vexing issue, read the contortions we went through in the constitution about slavery and the amendment that stopped it.

The proponents of a "living constitution" aren't really worried about flexibility. They just don't have the fortitude to go through the process to expand the constitution to whatever they think it needs to say. Make a political argument, gather support, convince enough people in the soundness of your ideas and you too can get the constitution to say anything you want it to say. The only limit is the good sense of the voters and their representatives.

I recognize this isn't as easy as just convincing 5 people, but its the rules of the game in this country.

YEA! Paul is BACK!<p... (Below threshold)
epador:

YEA! Paul is BACK!

I am all for originalism. And streamlined confirmation processes.

'Course that leads me more to JT's agnostic world viewpoint when it comes to religious documents.

How about the LIVING BIBLE or the LIVING KORAN?

They are documents, ones that have been written by men and shaped by interesting distant politics for a few centuries before finally congealing into the various versions currently now popular. Should we shape them further to meet our current "needs[and desires]?"

The people who wan... (Below threshold)
kbiel:
The people who want the Constitution to be a "living document" just don't like what it says.

It's not that they dislike what it says; it's that they're too lazy or too arrogant to change it using the process outlined in the same document.

What about those Gun Right... (Below threshold)
DDT:

What about those Gun Rights?

We could ask prospective SC... (Below threshold)
Phinn:

We could ask prospective SCOTUS nominees this question: Do you pretend to have a magic Constitutional pen and eraser that allows you to re-write it as you wish?

Or, Do you know how to fucking read a simple document without hallucinating?

>YEA! Paul is BACK!<p... (Below threshold)
Paul:

>YEA! Paul is BACK!

Had I left?

But...but...it's got all... (Below threshold)
mantis:

But...but...it's got all those icky references to God and religion and stuff!

God is not referenced once in the Constitution. Religion is mentioned twice: in Article 6 where it states "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.:", and of course the 1st Amendment. I don't think that any of the living constitution people have a problem with those.

How about the LIVING BIBLE or the LIVING KORAN?
They are documents, ones that have been written by men and shaped by interesting distant politics for a few centuries before finally congealing into the various versions currently now popular. Should we shape them further to meet our current "needs[and desires]?"

How can you not? They're full of inconsistencies and falsehoods

(For the record I agree with Scalia)

> I don't think that any of... (Below threshold)
Paul:

> I don't think that any of the living constitution people have a problem with those.

Mantis... that is just laughable. Not even you belive that.

Ok, you're right. I wasn't... (Below threshold)
mantis:

Ok, you're right. I wasn't really thinking of the whole "pledge of allegiance" thing and related. I suppose the originalist interpretation of the first amendment would restrict itself to laws passed by Congress. Oops. In any case I don't think that's what bobdog was talking about.

While on the topic though, I'm curious what Scalia's opinion on what constitutes "cruel and unusual" in the 8th amendment. Since Trop v Dulles this has been seen to be based on "evolving standards of decency that mark the progress of a maturing society," which as I understand is the heart of the living constitution stance. How do we define something like "cruel and unusual" which is not explicitly spelled out in the Constitution?

I'd put it a bit differentl... (Below threshold)
Tom:

I'd put it a bit differently than kbiel: Proponents of the "living Constitution" dislike what the Constitution says in certain places (e.g., the enumeration of specific powers, which do not include the power to enact such things as Social Security, Medicare, etc.). But the proponents of the "living Constitution" found that Congress and the Supreme Court could "amend" the "objectionable" parts of the Constitution by fiat, so they haven't had to go to the trouble of changing it by amendment.

With one more Bush appointee to the Supreme Court, those who have come to love the "living Constitution" may have to part with it.

The real evidence of how go... (Below threshold)

The real evidence of how goofy this "living Constitution" concept is can be found in the written opinions of the SCOTUS. When it was just a matter of judges reading and understanding the Constitution their opinions were routinely one page long. Now, opinions from the court run dozens of pages. Takes a lot more words to explain your ruling when you're just making stuff up.

""How about the LIVING BIBL... (Below threshold)
Kamatu:

""How about the LIVING BIBLE or the LIVING KORAN?
They are documents, ones that have been written by men and shaped by interesting distant politics for a few centuries before finally congealing into the various versions currently now popular. Should we shape them further to meet our current "needs[and desires]?""

How can you not? They're full of inconsistencies and falsehoods"

Woohoo, hurry, hurry, hurry, join the Skeptikz now and get a free supply of AntiBibleLite. Less filling of your brain and feels great not to have to use critical faculties.

Learn to appreciate the joys of:
1. Making up different authors for whatever parts you want to dispute, based on the idea that nobody could write way back then.
2. Using special pleading that applies to no other ancient text.
3. Mistake poetry for history, history for prose and prose for history.
4. Use documents written centuries after the oldest extant ones to claim as the "real" originals.
5. Heck, just make up a document that nobody has ever seen and call it the "true" original.
6. Find "contradictions" by learning how to quote out of context in both a literary and historical sense.
7. Learn to apply 20th Century English writing style manuals to 2000+ year old Hebrew, Aramaic and Greek documents to make trivial refutations.
8. Learn how to read the Bible in the worst parody of wooden literalist KJV-onlyist fundamentalists! Just think, you can outfundie the fundies!

This is great, if everyone accepts this way of Bible interpretation, we can eliminate Judaism and Christianity in one generation!

Mantis - A guy lik... (Below threshold)

Mantis -

A guy like Scalia would literally try to guess what was considered cruel or unusual in 1792.

Seriously.

In trying to answer my own ... (Below threshold)
mantis:

In trying to answer my own question I came across this essay concerning Scalia's originalism. Still reading it, but I thought I'd post the link for your consideration.

Kamatu, If you don... (Below threshold)
mantis:

Kamatu,

If you don't like that link try this one

The Geocentrism Challenge

CAI will write a check for $1,000 to the first person who can prove that the earth revolves around the sun. (If you lose, then we ask that you make a donation to the apostolate of CAI). Obviously, we at CAI don't think anyone CAN prove it, and thus we can offer such a generous reward. In fact, we may up the ante in the near future.

Mantis, I looked at all the... (Below threshold)

Mantis, I looked at all the verses provided (except those that are not in the Protestant Bible), and none of them claim that the sun revolves around the earth unless one takes them extremely literally. The closest any of them come is the passage in Joshua. At least half the references are to poetry, which is a highly figurative form of writing. Suffice to say that I do not believe the Bible necessarily supports a geocentric perspective.

Then again, you probably believe that the Bible says the earth is flat, too.

Mantis, I looked at all ... (Below threshold)
mantis:

Mantis, I looked at all the verses provided (except those that are not in the Protestant Bible), and none of them claim that the sun revolves around the earth unless one takes them extremely literally.

Well, my point was that the Bible cannot be taken literally, or else believers would have to think that the Sun revolves around the Earth (as some do). Since you also seem to feel that biblical verses can be read figuratively, we are in agreement.

I'm curious why you don't think that 1 Chron 16:30 is clear enough:

Fear before him, all the earth: the world also shall be stable, that it be not moved.

As far as a flat Earth is concerned, one wonders how passages such as Daniel 4:10-11 and Matthew Matthew 4:1-12 where a tall tree can be seen from all parts of the Earth and Jesus can see a all the kingdoms of the Earth from an extremely tall mountain, respectively. Neither of these things are possible on a spherical Earth. If I remember correctly there are some references in Job as well, but I'm not going through Job again right now.

Btw can something be "extremely" literal? Are there degrees of literalness?

The fact that he called peo... (Below threshold)
Ike Truman:

The fact that he called people "idiots" who disagree with his narrow philosophy of the world says again that this guy has no business doing anything that affects the lives of people. Originalism? I guess they means 'chattel slavery?' Perhaps, he forgot what this country was when it was founded. I, unlike others, have never been impressed with Scalia. He is unfit for the court, and should resign.

If I was playing poker with... (Below threshold)
Ike:

If I was playing poker with someone and the rules were as bad as the constitution was when it was written, I would insist upon changing the rules of the game. That's what has been done; now the game is a little fair. Of course, if you were one of the beneficiaries of the unfair rules, why would you want to change the rules? Here's one, you are in a relay race, and they say go, except, one team is riding a bike and the other teams are walking and carrying cement blocks weighing 50 lbs. So one day, they say, hey, can I put down my blocks and ride a bike, or how about I put down my block and we all walk. So, you, the originalist, say, hell no, the rules are the rules, and keep riding on the bike. One day you do agree that we can put down the block but we still can't ride a bike. This is Scalia's mad world - he thinks inequality and inequity is fine only because some rich dudes got together 200 years ago and said that this is how the world should operate. Under his originalism theory, no one is ever wrong; as long as they were the original. He's is, as he says, an idiot.

Ike after reading your comm... (Below threshold)
cubanbob:

Ike after reading your comments truly your the idiot. Scalia absolutely right, the Constitution is a legal document. The text is the text. there is a mechanism for changing it. it's called an amendment.
The Living Constitution crap, and that is what it is, crap, is a leftist ruse to get the courts to implement changes the public as a whole doesn't support. Just remember that a court that can interpret the Constitution using the logic of Brown vs School board can just as easily rule in a Plessy vs Ferguson. The role of the courts is not that of a super legislature.

mantis, I'd love to discuss... (Below threshold)
Paul:

mantis, I'd love to discuss the topic but I've been struck blind by someone in the comments telling me I was right about something.

Actually it's late and I'm tired but that first part was a shocker.

Mantis, I think when one is... (Below threshold)

Mantis, I think when one is referring to scripture, there are certainly nuances of literalness. Some things can be taken both literally and figuratively, some only one way or the other.

One should be careful when one is talking about books such as Daniel. It's highly figurative language because it is prophecy. The tree in Daniel is not a literal tree.

I took a closer look at 1 Chronicles 16:30 and broke out my trusty Strong's Exhaustive Concordiance (such a handy book). Based on the meaning of the words "stable" and "moved", I think the point of the verse is not that the earth is in a fixed position, but the system of the earth has been established and it will not be overthrown. Stable could be translated as "stable, fixed, established, prepared, set, directed, or confirmed". Moved could be translated as "moved, shaken, (to) totter, slip, dislodge, be overthrown, let fall, drop".

As for the passage in Matthew, I am going to wager a guess and say that it was not referring to the entire globe, but the kingdoms the Jews were familiar with. One could also question whether it was a literal mountain or not. Again, questions of literal intent must be taken into account. The Bible is full of very beautiful poetic and therefore metaphorical language. (That does not mean that I do believe that none of the Bible can be taken literally; it all depends on what type of writing we are talking about, e.g. prophecy, poetry, history, etc.).

Mantis brings up a great po... (Below threshold)
Denny Crane:

Mantis brings up a great point about "cruel and unusual." There are many other examples, such as "due process," "unreasonable search and siezure," etc. These terms are NOT defined in the Constitution, and were intended to be interpreted in light of changing times and technology. Even "Originalists" appreciate the intended living nature of these terms.

Some of you are misunderstanding Scalia's philosophy, which readily acknowledges that some of the key phrases must evolve in the courts. His stance is not as rigid as some of you seem to think and, if you knew anything about the Constitution, you would understand your view is unworkable.

Don't get me wrong: I like Scalia and have read very few opinions where I thought he was an idiot.

Large Bill: "Their opinions were routinely one page long."

Huh? You haven't spent much time reading Supreme Court decisions, have you? They were never "routinely" one page long. Never.

Heh, David Bernstein at Vo... (Below threshold)
Denny Crane:

Heh, David Bernstein at Volokh Conspiracy busts Scalia pretty well here:

http://volokh.com/posts/1140012076.shtml

Glass houses, indeed.

Cubanbob,You say t... (Below threshold)

Cubanbob,

You say there is a mechanism to change the constitution, it is an amendment. No shit.

It is understanding what these amendments actually mean that gets us into trouble. Me thinks you haven't actually read the constitution in a while. With the exceptions of the commerce clause and the spending clause, most of the "living constitution" debate centers on the amendments.

Take the 2nd Amendment. Of course the right to bear arms shall be infringed. Unless you want people to be able to carry guns onto domestic airplane flights. Unless you want people to be allowed to carry biological weapons into elementary schools. Unless you want retarded 14 year old registered sex offenders to be able to carry nuclear warheads into the Capitol Building. In each of these scenarios, the government infringes upon the right to bear arms. A real world interpretation of the Constitution is like socialism. It isn't a matter of yes or no. It is a matter of how much.

The true originalist position is a bit silly. We are not children left with instructions from Mommy and Daddy that must be followed to the letter. It is our country. If we think the 4th amendment is a bit fuzzy on sneak and peak searches of our internet search histories, we have the duty to interpret it, not for the approval of some long dead plantation owners (who's opinions on the matter are impossible to discern), but rather to create "a more perfect union."

The Constitution is not scripture. It is a blueprint. We are still in the process of building and to stubbornly suggest that the blueprint is inerrant, is the true idiocy.


A guy like Scalia would ... (Below threshold)
brutus:

A guy like Scalia would literally try to guess what was considered cruel or unusual in 1792.

What's wrong with that? If the people's standards have evolved since then, we have state legislatures to further constrain government actions. This is how our founders intended this nation to be governed!

The "living document" crowd are apparently happy to see our robed masters poll popular opinion to gleen the "current" standards on such issues every 10 years and declare that the Constitution now says that executing 17 year-olds is cruel.

I'm reminded of Orwell's Animal Farm, where the rules of the farm are periodically "updated" by the rulers in the dead of night so that, "All animals are equal" eventually leads to, "All animals are equal but some animals are more equal than others." So much for Democracy, when 9 unelected jurists can rewrite the rules whenever it suits them.




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