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TONY ANDERSON

Scalia advocates a “dead” U.S. Constitution

During a recent interview on National Public Radio, Justice Antonin Scalia explained his view that the U.S. Constitution is “dead” and should be treated as if it were. It should be viewed as it was by our forefathers in 1791. Any attempt to interpret for today opens the door for individual justices to insert their own ideas.

  Nina Totenberg, NPR’s Supreme Court correspondent, was quick to note that means if capital punishment was constitutional then, it is constitutional now. Would the same hold true if a city wanted to bring back public stockades today?

  Scalia responded that if they were constitutional then, they would be today … regardless of whether it was a “stupid” idea.

  Totenberg also asked Scalia about the harsh tone he takes when writing about colleagues on the Supreme Court who disagree with him. The nearly 9-minute segment can be found online at http://www.npr.org/templates/story/story.php?storyId=89986017.

  Scalia has been promoting the new book that he wrote with lexicographer Brian Garner. The book is called “Making Your Case: The Art of Persuading Judges”. An additional interview with Scalia and Garner can be found at http://www.npr.org/templates/story/story.php?storyId=90001031.

  Love him or hate him, there is no denying, Scalia is a force to be reckoned with on the Supreme Court. The interviews offer an opportunity to hear directly from the man behind the sometimes acerbic decisions and dissents.

3 Comments on This Article

1
I agree with Scalia on this as a general proposition. If the constitution can change meaning based on the proclivities of individual justices, then it means nothing. Also, I do not buy the argument that it has to be a "living" constitution in order for the law to accept changing dynamics. The founders recognized that the people may want the constitution to change--that is why they set up a process to amend it! However, the point was that amending the constiution was suppossed to be difficult and a rare occurrence.

Within the last 50, with all the "changing interpretations" of the Constitution by courts, there is no need to propose a constitutional amendment. I mean, why try and get 3/4 of the states if you can get what you want with 5 justices!

A Constitution is by definition a set of immutable principles under which society organizes itself and sets forth the basic fundamental bedrock rules by which the people agree to live. By virtue of the power of congress and states to pass laws we are able to remodel the house as society changes, but we are not suppossed to tinker with the foundation unless absolutely necessary.

The founders never intended or envisioned (although read Brutus and Cato in the antifederalist papers for some interesting predictions on the behavior of the Supreme Court) the courts usurping legislative power as they have and setting themselves up as the promulgators of national social policy.
Comment By  Cato
Tuesday, April 29, 2008 at 3:19 PM

2
I disagree with Justice Scalia. Law is a dynamic field. The Legislature is constantly changing laws. The common law have evolved over the past 800 years. Dead means stagnant, or lacking power power or effect, or no longer is use, obsolete. The Constitution cannot be a dead document otherwise it would have no meaning today. Each time the Court is asked to determine whether a statute is consitutional, it must rely on the language of the Constitution, the intent of the framers and previous interpretations as applied to the facts of the case. If the document is dead, why are we do even rely on the Constitution? The preamble of the Constitution states, "in order to form a more perfect union..." It is not a perfect document, but it provides the breathe of life to our country. It is a living document.
Comment By  Ruth
Monday, April 28, 2008 at 3:09 PM
3
I wonder how he reconciles applying the fundamental concept of judicial review with the fact that no such power is granted the court in the 1791 version?
Comment By  Nick Zales
Monday, April 28, 2008 at 3:02 PM

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