No, Scalia — You’re The Idiot!

Ken AshfordConstitutionLeave a Comment

Supreme Court Justice Antonin Scalia said that I’m an idiot.

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 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."

The theory of a living constitution isn’t really a theory at all.  Instead, it is a phrase used to describe a Constitution whose boundaries and provisions are dynamic and amorphous, congruent with whatever the needs of society may be at a particular moment.  The Constitution is broad and general, rather than possessing a fixed and definitive meaning.

Simple-minded Scalia says that the Constitution "says something and doesn’t say other things", which is true, but of course, the problem is not what it says but what it means.  It is easy to demonstrate Scalia’s amateurish analysis by using the simple example of the Eighth Amendment, which forbids "cruel and unusual" punishment. 

Yes, we can all agree what the Eighth Amendment says . . . but does it mean???  What is "cruel and unusual" where punishment is concerned?  The Framers were smart enough not to lay down specifics.  Because what was "cruel and unusual" in 1781 is probably not "cruel and unusual" today.  And they knew that.

The "living Constitution" is what enables the judiciary to be reasonable.  It’s what makes Plessy v. Ferguson fall and Brown v. Board of Education rise.  It’s what makes it illegal for people to have thermonuclear weapons despite the Second Amendment.

The Framers of the Constitution were smart enough to know that they were not omnipotent.  They wrote a flexible document for the ages.  Just as architects the framework of a skyscraper flexible so that it moves with the end (rather than crumble), so too does the Constitution.  It’s the strict constructionists, like Scalia, who are the rigid idiots.

Of course, it should be stressed that Scalia is quite happy to "read into" the Constitution when it suits him.   For example, the Constitution says in Article I, Section 8, Clause 3 that Congress has the power:

"To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."

What is "commerce . . . among the several states" (also known as "interstate commerce")?  What does that mean?

Well, look at this Scalia quote from just one month ago, in his dissent in Gonzales v. Oregon:

From an early time in our national history, the Federal Government has used its enumerated powers, such as its power to regulate interstate commerce, for the purpose of protecting public morality–for example, by banning the interstate shipment of lottery tickets, or the interstate transport of women for immoral purposes. Unless we are to repudiate a long and well-established principle of our jurisprudence, using the federal commerce power to prevent assisted suicide is unquestionably permissible.

[Emphasis added]

That’s right.  According to Scalia, the Constitution actually says that Congress (under their federal commerce power) can prevent assisted suicide.

So, in summary, the Constitution is actually a "living Constitution" when Scalia wants it to be.

LATE ADDITION:  David Bernstein at The Volokh Conspiracy writes:

So remind me again, Justice Scalia, how putting people in jail for the noncommercial cultivation and use of marijuana in California by California residents for medical purposes as allowed by California law comes within Congress’s power to "regulate commerce … among the several states." Unless you were an advocate of the "argument of flexibility" and the idea that the Constitution "has to change with society like a living organism," you would have to be an idiot to believe that the Necessary and Proper Clause somehow allows Congress to also regulate noncommercial intrastate activity with no substantial effect on interstate commerce, no?