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Scalia: 'Constitution Not Living Organism'
Newsmax ^ | April 14, 2005 | Carl Limbacher

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.

Story Continues Below

"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.


TOPICS: Constitution/Conservatism; Culture/Society; Politics/Elections
KEYWORDS: judicialactivism; livingconstitution; scalia; transjudicialism
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Judges who think that the constitution is a "living document" or who rely on foreign laws should be impeached as they are breaking their oath of office (they take an oath to defend the constitution). If US citizens think part of the constitution is no longer valid there is a way to democratically amend it. That power rests with the people and should not be arrogantly taken over by judges.
1 posted on 04/14/2005 3:03:45 PM PDT by winner3000
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To: winner3000

How does he feel about diversity being a compelling state interest?


2 posted on 04/14/2005 3:05:56 PM PDT by econ_grad
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To: winner3000
The genius of the FF is that amending the U.S. Constitution is a function solely given to the Legislative branch. The Judicial and Executive branches have no say whatsoever.
3 posted on 04/14/2005 3:07:16 PM PDT by Borges
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To: winner3000

Scalia needs to be appointed Chief SCOTUS; Buzzy Ginsburg needs to be removed from the bench.


4 posted on 04/14/2005 3:08:06 PM PDT by brivette
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To: winner3000

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.


5 posted on 04/14/2005 3:09:04 PM PDT by Jim 0216
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To: Jim 0216

There's no way that 2/3rds of the House would vote to impeach.


6 posted on 04/14/2005 3:09:54 PM PDT by Borges
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To: winner3000
"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.
7 posted on 04/14/2005 3:11:31 PM PDT by TheDon (Euthanasia is an atrocity.)
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To: econ_grad
How does he feel about diversity being a compelling state interest?

Scalia dissented in UMich case.

I imagine he was deeply offended by O'Connor's patently silly opinion.

8 posted on 04/14/2005 3:13:20 PM PDT by okie01 (A slavering moron and proud member of the lynch mob, cleaning the Augean stables of MSM since 1998.)
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To: winner3000
And Living Document vs Originalist can be traced to two competing philosophical foundations:

materialism: Human Nature is malleable, people change and so should government. (this devolves to We can replace god with man, Fascism, and the ultimately genocide of the weak at the hands of the Elite).

Spiritualism: Human Nature is fixed, ie, the Constitution is just as relevant now as it was X many years ago. The group exists for the mutual benefit of Individuals, freedom, and spiritual fulfillment.
9 posted on 04/14/2005 3:14:11 PM PDT by Dead Dog
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To: Borges

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.


10 posted on 04/14/2005 3:14:17 PM PDT by winner3000 (part)
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To: Jim 0216

"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....


11 posted on 04/14/2005 3:14:40 PM PDT by Arthur Wildfire! March (<<<< Profile page streamlined, solely devoted Schiavo research)
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To: Borges
What are the alternatives? (There's a record of a president in the early 1800's doing away with a certain number of judgeships, thereby essentially firing the judges.
12 posted on 04/14/2005 3:16:08 PM PDT by Jim 0216
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To: Jim 0216

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.


13 posted on 04/14/2005 3:16:16 PM PDT by Arthur Wildfire! March (<<<< Profile page streamlined, solely devoted Schiavo research)
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To: Borges
There's no way that 2/3rds of the House would vote to impeach.

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.

14 posted on 04/14/2005 3:17:59 PM PDT by supercat ("Though her life has been sold for corrupt men's gold, she refuses to give up the ghost.")
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To: winner3000
You could be right about the makeup of Congress in years to come but I still think it would be very hard to impeach a Judge for what amounts to an interpretation of the Constitution that we find disagreeable. Most of these decisions can be traced to 'Substantive Due Process' can't they? A legal philosophy Scalia doesn't believe but others do. Impeaching Judges for decisions opens a very ugly can of worms. The answer is to appoint good Judges.
15 posted on 04/14/2005 3:18:05 PM PDT by Borges
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To: Jim 0216

Jefferson trying to remove Samuel Chase is regard as one of the low points of his Presidency.


16 posted on 04/14/2005 3:18:54 PM PDT by Borges
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To: winner3000
Any idea what the justice's' oath of office states?
17 posted on 04/14/2005 3:20:10 PM PDT by canalabamian (Diversity is not our strength...UNITY is.)
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To: supercat

You could be right. Anyone?


18 posted on 04/14/2005 3:20:55 PM PDT by Borges
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To: Borges

You need 2/3 to convict, but only a majority to impeach.


19 posted on 04/14/2005 3:21:40 PM PDT by buridan
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To: winner3000

"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.


20 posted on 04/14/2005 3:22:05 PM PDT by Paloma_55
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