Skip to comments.Scalia: 'Constitution Not Living Organism'
Posted on 04/14/2005 3:03:45 PM PDT by winner3000
The Constitution is not a "living" document that changes with the times U.S. Supreme Court Justice Antonin Scalia says, but is to be interpreted on what the Founding Fathers meant at the time they drafted the Constitution.
That's how he determines the meaning of the document he told an audience Monday at Nashville's Vanderbilt University according the Vanderbilt Hustler.com.
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"The Constitution is not a living organism," Scalia insisted.
Taking a position at odds with current opinion that holds that the Constitution changes in order to meet the needs of a changing society and thus acts as a "living document" that allows for flexible interpretations, Scalia says he takes what he called the "Originalist" point of view.
"Originalism was the dominant philosophy until 50 years ago," said Scalia. He repeatedly challenged the "living constitution" doctrine held by most law students and professors.
"Most people think the battle is conservative versus liberals when it's actually originalists versus living constitutionalists," Scalia said.
Scalia said he reads the text of the Constitution in a literal manner, a method in which the "plain and ordinary meaning" of the text guides interpretation. "Words mean what they mean."
"My system is flexible," he added, and went on to cite examples of his flexibility. "If you want the death penalty, pass a law ... if you want abortion, pass a law ... if you want something, persuade other citizens and pass a law," he said, by implication taking issue with activist judges who use the bench to create new laws.
Scalia said he does not foresee an immediate change from the active judiciary created by the living constitution approach, because, "It's a lot more fun to talk policy than to talk texts, and it puts more power in the hands of judges."
The living document controversy is not the only issue dividing Scalia from his colleagues - he has disagreed with his fellow justices in the matter of the court basing decisions on foreign law.
As Newsmax reported, Justice Ruth Bader Ginsburg said that as a justice she considers foreign laws not just U.S. laws and its Constitution - in forming her legal opinions.
Ginsburg said criticisms of relying too heavily on world opinion "should not lead us to abandon the effort to learn what we can from the experience and good thinking foreign sources may convey."
She also came down on the side of the living constitution position, telling members of the 99 year-old American Society of International Law in Washington, D.C. that "The notion that it is improper to look beyond the borders of the United States in grappling with hard questions has a certain kinship to the view that the U.S. Constitution is a document essentially frozen in time as of the date of its ratification."
In 2003, Republican Justice Sandra Day O'Connor openly stated that the court should look abroad for judicial guidance, saying "The impressions we create in this world are important, and they can leave their mark."
O'Connor indicated she and the High Court had been influenced in recent rulings, citing foreign laws as having helped the Court rule that executing mentally retarded individuals as illegal. She also said the Court relied on European Court decisions when it struck down Texas's law outlawing sodomy or sex between adults of the same gender.
This drew a sharp rebuke from Scalia who wrote: "The court's discussion of these foreign views (ignoring, of course, the many countries that have retained criminal prohibitions on sodomy) is ... meaningless dicta. Dangerous dicta, however, since this court ... should not impose foreign moods, fads, or fashions on Americans." he said.
How does he feel about diversity being a compelling state interest?
Scalia needs to be appointed Chief SCOTUS; Buzzy Ginsburg needs to be removed from the bench.
Are there any actual judicial impeachment proceedings in progress? What will it take to get the ball rolling. I think many Americans would be behind it.
There's no way that 2/3rds of the House would vote to impeach.
Scalia dissented in UMich case.
I imagine he was deeply offended by O'Connor's patently silly opinion.
Unfortunately the Founding Fathers didn't think that the judiciary would ally itself with one of the major parties, effectively protecting the judges from impeachment (very difficult to get a 2/3 vote). However, the way the Democrats are going, they may yet reach that low point. Also, the more they lose the more activist the judges become. The more activist the judges the more disgusted the public becomes of the Democrat party. The consequence is more Republicans are voted to office and more Conservative new judges are appointed. Time would then redress the balance.
"Are there any actual judicial impeachment proceedings in progress? What will it take to get the ball rolling. I think many Americans would be behind it."
It will take a couple of election cycles, unfortunately. FReegards....
BTW, a few years ago, people thought I was nuts when I called for impeachment. Earlier this year, Rehnquist pleaded that people stop calling for impeachment. We're making rapid headway.
I thought it only took 50% of the House. Removal by the Senate may be impossible, but I would think the House would have subpoena powers and could publicize anything it thought should be publicized.
Jefferson trying to remove Samuel Chase is regard as one of the low points of his Presidency.
You could be right. Anyone?
You need 2/3 to convict, but only a majority to impeach.
"Unfortunately the Founding Fathers didn't think that the judiciary would ally itself with one of the major parties, effectively protecting the judges from impeachment (very difficult to get a 2/3 vote). However, the way the Democrats are going, they may yet reach that low point."
Its amazing how naive the Founders were. They also did not think that a major party would put its own political interest in front of the people's interest during a time of war... but we have seen the Democrats do that too.
I'll second this motion.
Hammurabi wrote his 282 laws down so all could know the law and so it could be consistently applied. That's why the English knights began documenting their decisions as they rode circuits in England dispensing justice between wars-so each would know what the other was doing to make the law consistent and universal. To now say that law should be stretched, augmented or ignored based on the whim of society or viewpoint of an individual judge is the legal equivalent of turning the clock back 5,000 years; tantamount to replacing the internet with carrier pigeons. Activist judges betray the soul and integrity of the system that good men have defended with their blood since the barons stood up to King John at Runnymede.
I would bet that quite a few Republicans in the House would not vote to impeach. Just a guess.
It is not a living organism. However, it is also not static. It has a built-in mechanism for change -- the constitutional amendment. Too bad that the courts, especially the 9th Circuit, fell like they can amend it themselves with their "rulings."
I think there could be a case made for INTENTIONALLY and DELIBERATELY ignoring or changing the constitution from the bench. There's so many invented "rights" that are clearly not in the constitution, that I think these clear and willful acts from the bench could be proved. I like the idea that the impeachment proceedings in the house would at least bring much of this to light.
There goes his chance to be the Chief Justice. He disagreed with Bush, which should be a cause for his removal from the court according to Bushbots.
The Framers of the Constitution didn't even plan on political parties, period (or else they would have known better than to have the person with the second-most electoral votes become VP - guaranteeing that the VP would be the opponent of the president.
They also didn't foresee the advent of "objective" journalism, with which one political party would align itself.
Not from this Bushbot.
"Living Constitution" = NO Constitution
Yeah, it's really not "Living COnstitution" at all it's those who believe the Constitution is the law versus those who say "I AM THE LAW."
The real question is whether Scalis sodomizes his wife.
Who needs Constitutional amendments when Judges can find "penumbras" in the Constitution just like the ancient priests at Delphi found prophesies in the arrangement of chicken entrails? < /sarcasm>
Yes, the liberals hate the constitution, hate the rule of law, hate democracy, and the end of their "politically-correct" vision is a one-world government (eventually ruled by the Antichrist). Its going to be a prayer-and-ideolgical fight to the end.
excellent point! checks and balances..
Scalia should re-read the emanations from the penumbra of the Constitution. It currently is a living document.
What does that mean?
I am currently teaching a Comparative Worldview (biblical vs humanist) class in the evenings at the Air Force Academy Prep School, Colorado Springs. Fifth year at Air Force Academy. Taught same class at the West Point Prep school for five years.
I also have the privilege of teaching several classes in Colorado Springs to high school, college, and adults on comparative worldviews (biblical vs secular). As I read the various threads, some impress me as good for illustrating different worldviews. So, using some Army terminology, I mark threads as:
SPOTREPS (spot report) - incidents"
SITREP (situation reports) - descriptions of the current world scene"
INTREP (Intelligence Report) - information of an event involving those of the "opposition;"
INTSUM (Intelligence Summary) provides more general information.
OB (Order of Battle) - identifies liberals, and other such Rats to watch out for.
Later, I download these reports to a database for future class use.
Additionally, I am now putting together a weekend seminar for students and youth workers aimed at equipping them to "Survive & Thrive" in a secular classroom and world. We will focus on Romans 1:20, using a CSI motif, to explore the evidence for the existence of God...to confirm in their minds the legitimacy of believing in the God of the Universe. See my web site for more information, and how I use threads from FreeRepublic to develop the need for this seminar.
Hope that helps?