The Constitution "is not living, but dead." With these words Associate Justice Scalia sums up how he believes we should think about the Constitution -- a way of thinking that underpins the theory of "originalism" which guides his approach to cases that come before the Supreme Court.
In expounding on originalism, Scalia takes the Court to task on past decisions, including Roe v. Wade, and measures just how far the Court can and should go in reversing these mistakes- Hoover Institution
Peter M. Robinson is a research fellow at the Hoover Institution, where he writes about business and politics, edits the Hoover Institution's quarterly journal, the Hoover Digest, and hosts Hoover's television program, "Uncommon Knowledge."
Robinson is also the author of three books: How Ronald Reagan Changed My Life; It's My Party: A Republican's Messy Love Affair with the GOP; and the best-selling business book Snapshots from Hell: The Making of an MBA.
Antonin Scalia, Associate Justice, was born in Trenton, New Jersey, March 11, 1936. He received his A.B. from Georgetown University and the University of Fribourg, Switzerland, and his LL.B. from Harvard Law School, and was a Sheldon Fellow of Harvard University from 1960-1961.
He was in private practice in Cleveland, Ohio from 1961-1967, a Professor of Law at the University of Virginia from 1967-1971, and a Professor of Law at the University of Chicago from 1977-1982, and a Visiting Professor of Law at Georgetown University and Stanford University.
He was chairman of the American Bar Association's Section of Administrative Law, 1981-1982, and its Conference of Section Chairmen, 1982-1983. He served the federal government as General Counsel of the Office of Telecommunications Policy from 1971-1972, Chairman of the Administrative Conference of the United States from 1972-1974, and Assistant Attorney General for the Office of Legal Counsel from 1974-1977.
He was appointed Judge of the United States Court of Appeals for the District of Columbia Circuit in 1982. President Reagan nominated him as an Associate Justice of the Supreme Court, and he took his seat September 26, 1986.
(born March 11, 1936, Trenton, N.J., U.S.) U.S. jurist. He studied at Georgetown University and Harvard Law School, where he edited its law review. Successively, he worked for a Cleveland law firm (196167), taught at the University of Virginia (196774), served as an assistant U.S. attorney general (197477), and taught at the University of Chicago (197782). He was appointed by Pres. Ronald Reagan to the U.S. Court of Appeals (1982) and then to the Supreme Court of the United States (1986). Among the court's most outspoken justices, he quickly earned a reputation for aggressive oral argument and scathingly critical written opinions, especially when expressing dissenting views. An opponent of judicial activism, he favoured a restrained judiciary, deference to the original intent of the framers in constitutional interpretation, and a limited role for the federal government.
"This Constitution . . . shall be the Supreme Law of the Land; and the Judges in every State shall be bound thereby, any thing in the Constitution or Laws of any State to the contrary notwithstanding." (Article. VI., United States Constitution.)
The text implies a permanence, in my view. However, that Constitution also wisely includes an orderly, yet rigorous means of changing it, which Article. V. articulates.
Let's apply the "Living Constitution" theory to other "Laws of the Land," and see whether this theory stands up to scrutiny. Let's say I am driving down a road with a speed limit of 40 and I am going exactly 40 miles per hour. A police officer pulls me over, says I am speeding. He says that many people on that street have stopped him and told him that they thought 40 was too fast and the streets behind theirs have 30 mph limits and they felt that the evolving notions of the community necessitated that he redefine speeding, despite the Law and the posted 40 mph limit. The judge agrees with the police officer at traffic court and says he too believes that 40 is too fast and the ticket stands.
Would this be acceptable?
It seems almost as if the "living Constitution" proponents see Article. V. and the citizens' democratic vote as annoying constraints on the implementation of their ideas of how society should be. If 50 years from now, the "evolving standards of society" conclude that Congress should indeed be able to make a law respecting an establishment of religion or prohibiting the free exercise thereof. The purported "evolving standards," (which are "standards" only in the opinion(s) of one or more justices) without an Ammendment to the Constitution would not be sufficient to negate the textual meaning of the First Ammendment, would they? If not then how did Kelo occur? How did "public use" get distorted to "public purpose?" (the potential for higher tax revenue, in this case) I think permanence in the law and a rational, easily understood process for making changes to the law is essential for citizens to have a reasonable understanding IN ADVANCE of how they can plan and live their lives without government interfering with their behavior. This makes for a more harmonious, law abiding society.
Regarding the question of, "How do we know what the Framers meant?" - Isn't the text, the distilled idea that they deliberately decided to express and how they framed the laws the best, most important source? Certainly "International Law" cannot be a substitute, can it? (We the people of the United States, . . . do hereby ordain and establish this Constitution for the United States of America." Preamble, United States Constitution.) The subjective opinion of a lawyer (Supreme Court Justice) with no historical or textual basis cannot be a substitute, can it? The subjective opinion of an interested group cannot substitute for the text, can it? What will guarantee that their opinion will be wise, or good, or just? (No apolgies to Justice Taney) If a posted speed limit says I may legally drive 40 mph, shouldn't I be able to count on that law to plan my life and to be free from government intervention as long as I comply with that law? Read The Federalist. These people were very smart, very deliberate and mindful that tyranny would be at the doorstep of the new republic. The separation of powers and the difficult ammendment process were safeguards against tyranny. Ammendments have been adopted before, following the Constitutionally established process for doing so, because advocates for both sides made their cases and the people spoke, leading their elected representatives to enact the Ammendments. Could it be that the proponents of many ideas do not want a fair debate of the issue and wish for judicial intervention to enact their ideas undemocratically? Could it be that they have had a fair debate and lost at the ballot box and wish to side step the democratic process as well as the Constitution's supremacy? I fear this is usually the case.
I believe we ought to think long and hard about tinkering with the Constitution based on the zeitgeist or some other passing "global fad." One thing is certain - humans will see things differently as their circumstance change. Article. V. is the most thoughtful, open and democratic means to meet the future.
I agree with Laurence Tribe's ideas and abhor Antonin Scalia's troglodite notion.
Why should we controlled by a document and not be allowed to amend it as it's been for 220 years?
I think he has a very good point about the problem with changing the law via judge. The Constitutions is a recalcitrant document in order to enable an evolutionary change in it. If we are "evolutionary" about it, we will end up removing the possibility of evolution, which is inherited stability.
“The words of the Constitution are so unrestricted by their intrinsic meaning or by their history or by tradition or by prior decisions that they leave the individual Justice free, if indeed they do not compel him, to gather meaning not from reading the Constitution but from reading life.” - Justice Felix Frankfurter
Nixon's call for a strict constructionist had developed during his 1968 presidential campaign. He wanted a justice who believed the Supreme Court "should interpret the Constitution rather than amend it by judicial fiat." When selecting Burger, Nixon told the press that a good example of a strict constructionist jurist was former justice Felix Frankfurter. It was a savvy comment, since Frankfurter was held in high esteem, but it also showed the vague meaning of the term.
"Fragile as reason is and limited as law is as the institutionalised medium of reason, that's all we have between us and the tyranny of mere will and the cruelty of unbridled, undisciplined feelings."- Justice Felix Frankfurter
"It is a fair summary of history to say that the safeguards of liberty have been forged in controversies involving not very nice people." - Justice Felix Frankfurter, United States v. Rabinowitz 
I always find that comment funny because the original fascists were the liberals (progressives) of their time. Mussolini and Hitler were socialists (until they became to nationalist for the socialists).
Since Justice Scalia spent some time in the lower courts, his claim that non-Constitutional laws "mean what it meant when they was enacted" is more than a little disingenuous. He knows perefecytly well that his job as judge was to "apply the law." You can't apply the law without interpreting it. It's the job of Counsel to persuade the judge that one interpretation is more valid than the other.
A law written 200 some years ago cannot possibly mean now what it meant then. If, indeed, we could recover that 200+ year old meaning, which is in principle impossible. To recover that meaning, we have to translate the law into modern language, but all translations are intrinsically incomplete, imprecise, ambiguous, and misleading. That's the nature of language.
All things considered, it's a,mazing that the Constitution has held up as well as it has.
"All you need is a legislature and a ballot box." Ideally, that's great. If only the entire population were enlightened enough to wield that power well. The rigid and ossified constitution is supposed to protect our freedoms against the tyranny of the majority. But as society progresses, so to does the concept of our freedom, and constitutional guarantees of freedom must accommodate them, don't you think? Saying "if you want a right, pass a law" is crap. I don't want to have to pass a law for every single thing I want to be allowed to do, especially if it has no effect beyond my own personal well-being. A law should only say what I am NOT allowed to do. The law says I cannot murder someone. I cannot steal from someone. Thankfully, I don't yet require legislative permission to dye my hair pink or eat a picnic lunch in the park.