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.