U.S. Supreme Court justice dismisses notion of ‘living Constitution'

U.S. Supreme Court Justice Antonin Scalia warned about the perils of a “living Constitution” Wednesday in a speech at the University of Montana, distinguishing his judicial role as a constitutional interpreter, not a framer.

In his afternoon speech, as well as during an earlier question-and-answer session with UM School of Law students, the jurist trained his focus on a favorite subject - constitutional interpretation, and its controversy within the Supreme Court.

“Every time a new right is invented under the living Constitution, democracy is minimalized, federalism is minimalized,” he said, calling the Constitution “the rock to which the polity is anchored.”

Scalia rejected the notion of a “living Constitution” and demurred at judicial decisions being tailored to meet an “evolving standard of decency.”

The Constitution, he said, must remain static, while responsible judicial interpretation of the legal ballast should consider “what the people thought at the time.”

“The disagreement, believe it or not, has nothing to do with politics, whether you're Republicans or Democrats; it really doesn't even have much to do with whether you're conservative or liberal,” Scalia said. “The fault line in constitutional interpretation is between those who think that the Constitution is static - it does not change, it means today what it meant when the people adopted it - and those who think that the Constitution changes from generation to generation, and it is the job of the Supreme Court to announce the changes, to say when old rights have gone out of existence and new ones have come into existence.”

Scalia told an audience of about 600 people, including members of Montana's state and federal judiciary, that the Constitution should not change with the whims of each successive court. Instead, justices should apply a strict interpretation of the Constitution, he said, providing the only sure criterion to prevent judges “from doing whatever suits them.”

“A Constitution is not a living organism, for Pete's sake, it's a legal document,” he said, criticizing the Supreme Court for amending the document every term. “It's become a mini-constitutional convention every time you appoint a new nominee to the Supreme Court.”

About 150 students gathered Wednesday morning in the basement of the law library, where they peppered Scalia with questions, ranging from his strict interpretation of the right to bear arms to his bewilderment of Indian law - “Indian law is the most difficult, confusing area of law. We have largely made it up” - and his disapproval of Roe v. Wade, the landmark Supreme Court case that overturned all state and federal laws outlawing or restricting abortion.

Scalia, a staunch proponent of textualism, was careful to distinguish the original meaning of the Constitution from the framers' original intent, and struck down the notion that he was a strict constructionist, a philosophy that limits or restricts judicial interpretation. Scalia said his philosophy as a textualist and an originalist actually facilitates democratic change, and does not restrain flexibility.

While some Supreme Court justices maintain that the death penalty violates the constitutional prohibition against cruel and unusual punishment, Scalia said the country's founders wrote no such thing, and the issue should be dealt with by individual states, not by a federal body.

“You don't need a constitution to change, all you need is a legislature and a ballot box,” he said. “As new rights never identified by the people have been created by the Supreme Court, the scope of democracy has narrowed.

“It's something we should be very reluctant to tamper with,” he told the students. “We've been living under the strength of this document a century longer than Italy has been a nation. So don't mess with it.”

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