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Justice Scalia: “A Living Constitution Doesn’t Exist” [Speech at Texas A&M]
Texas A&M University - Aggie Daily ^ | May 5, 2005

Posted on 05/05/2005 3:22:31 PM PDT by Constitutionalist Conservative

May 5, 2005 – Criticizing those who believe the Constitution should be flexible and adapted to modern times, Associate Supreme Court Justice Antonin Scalia said Thursday during a speech at Texas A&M University that there is no such thing “as the living Constitution.”
      Scalia was speaking as part of the Twanna M. Powell Lecture at the George Bush Presidential Conference Center.
      “I’m what you call an ‘originalist,’ one who believes the Constitution should be interpreted exactly as it was adopted,” Scalia added.
      “It should be interpreted as it was written – nothing more, nothing less. Rights do not grow smaller or larger. Some legal experts say you have to interpret the Constitution broadly, but that’s not true under any circumstance.”
      Scalia, who was appointed to the Supreme Court in 1986 by President Ronald Reagan, added, “You hear the phrase ‘the living Constitution’ and that it’s a ‘living’ document. I’m a believer in the dead Constitution. Maybe we should better phrase it ‘the enduring Constitution.
      “The Constitution is not a living document. It’s a legal document, and legal documents do not change.”

      Scalia said that such controversial subjects as the death penalty and abortion are really not Constitutional issues “because there’s not one word about them in the Constitution. People who believe in a living Constitution would like to see such things as un-Constitutional.”
      The Constitution, he added, does exactly what it’s supposed to do: “It provides stability,” he said.
      Bush , when introducing Scalia, said that he “was a free spirit and deep thinker. He shares his views openly, and he is certainly thought-provoking.”
     Among the overflow crowd to hear Scalia were members of the Texas Supreme Court, the Fifth Court of Circuit Appeals and numerous federal and state judges.
      A native of Trenton, N.J., Scalia graduated from Harvard Law School and was a Sheldon Fellow of Harvard University. He was also a law professor at the University of Virginia and the University of Chicago and visiting law professor at Stanford and Georgetown. He served the federal government as General Counsel of the Office of Telecommunications Policy and was appointed judge of the U.S. Court of Appeals for District of Columbia in 1982.
      He and his wife, Maureen, have nine children.
      Scalia, who was approved as a Supreme Court justice by a vote of 98-0, said such approval “would never happen today. Congress wants moderates and a moderate interpretation of the Constitution. The ‘living’ Constitution idea is seductive to the man on the street, and even to some judges.
      “But we must apply the words as they were originally written and we must be bound by their original meaning. We must think of what the words are and what the words meant when the people adopted them.

      “The Constitution doesn’t ‘morph’ to be what we want it to be.”
      Scalia said if there were one change he could make to the Constitution, it would be to make amendments to it an easier process.
      “Amendments are not easy to do,” he added.
      “They must be ratified by three-fourths of the states. But someone figured out that with the population disparity of states today, only two percent of the total population could prevent an amendment from being passed. It’s very difficult to get an amendment passed.”


TOPICS: Constitution/Conservatism; Culture/Society; Front Page News; Government; Philosophy
KEYWORDS: constitution; judiciary; scalia; scotus
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To: P_A_I

No foreign court ruled away his RKBA in the US, an American court did. As an American citizen, he committed a bad act on foreign soil. You demand that we put blinders on the moment someone leaves our soil. I do not.

Looking over at that other thread, you seem to be looking for the court to have overturn the constitutionality of Federal Code § 922 because of this case. This is not the case to do that. It's not the case to even begin to try to do that. This case was purely about an ambiguity of the interpretation of a single word within the code.


101 posted on 05/06/2005 10:10:23 AM PDT by GoLightly
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To: P_A_I

Fine, but even though the Constitution says "Congress shall make no law," Congress itself is making laws left and write abridging the freedom of speech, etc.


102 posted on 05/06/2005 10:53:49 AM PDT by BikerNYC
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To: BikerNYC; P_A_I
There's no reason to believe that those who came before us were correct in figuring out what it means. They weren't perfect. We must figure out what it means ourselves.

This is a very dangerous way to view the Constitution. The burden is on the groups who claim that a given practice commonly held legal in 1789 and well beyond is "unenlightened" or "rendered inhumane by progress." Witness the onset of marriage redefinition activism. Clearly marriage is for rearing children according to anyone with any reasonable interpretation of the concept. Yet simply having an intimate relationship is suddenly "enough" to qualify for marriage in the progressive camp, complete with state benefits and a total rewrite of every sex education curriculum in the entire public school system.

For example, what does "Congress shall make no law..." mean?

This is very easy to understand given the writings of our most prolific and articulate founding fathers such as Thomas Jefferson, James Madison, and others. The intent is far short of what the typical FReeper believes it means. But injecting religious establishment into the Constitution by artificial transfusion is a convenient mechanism for defending culture against the revisionist hordes. And yes, they are savage hordes worthy of the name "hun."

The founding fathers were not secular humanists. They didn't believe in the incorruptible goodness of their fellow human beings; they believed in Calvinist and Enlightenment notions of power corrupting absolutely and knew an obligation to restrain individual authority on that basis with checks and balances. They did not believe that "social progress" would solve social problems rooted in human nature. Their form of humanism posited that restraints on the state and on individual authority combined with spiritual (if Deist) sincerity would produce ideal conditions in which liberty could flourish. But once anyone violated those boundaries, self-defense for those whose rights he had violated became a duty, and later the state was obligated to try him by a jury of his peers and remove him from his community.

We are a nation of laws, not men. Think about that very carefully. It's a very profound statement. The same notion of "reinterpreting" the Constitution has permitted judges, legislators, and executive offices in many states (including California's) to abandon the second amendment because it's inconvenient to some modern ideals of peacability.

Reinterpreting the Constitution is going to destroy the Republic.

103 posted on 05/06/2005 12:11:00 PM PDT by risk
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To: Badray

bump for later


104 posted on 05/06/2005 12:13:04 PM PDT by Badray (If you don't want to change your mind, at least get some more info and make a new decision.)
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To: 26lemoncharlie

The 13th Amendment took care of that.


105 posted on 05/06/2005 2:20:18 PM PDT by Abcdefg
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To: Constitutionalist Conservative

If he believes what he is saying, he really screwed up on the Earls case.


106 posted on 05/06/2005 2:27:15 PM PDT by Ed_in_NJ (Who killed Suzanne Coleman?)
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To: GoLightly
Maybe it's just me, but the intent of all of the writers of the 2nd amendment & those that voted to make it into law meant it to say that the right of "all American people" to keep and bear arms shall not be infringed. [by foreign courts]

No foreign court ruled away his RKBA in the US, an American court did.

Nope, the 'justice dept' simply decreed that he had been convicted, and denied him his RKBA's.

As an American citizen, he committed a bad act on foreign soil.

So you, and the feds claim. Why should an alleged 'bad act' there lose him rights here?

You demand that we put blinders on the moment someone leaves our soil. I do not.

I demand that our RKBA's not be deprived without due process. You do not.

Looking over at that other thread, you seem to be looking for the court to have overturn the constitutionality of Federal Code § 922 because of this case.

Exactly. That is their duty, under their oath to support the Constitution.

This is not the case to do that. It's not the case to even begin to try to do that. This case was purely about an ambiguity of the interpretation of a single word within the code.

So you would have us believe. -- I believe it's an issue of Constitutional principle. No citizen should lose his RKBA's by the decree of a foreign court.

107 posted on 05/06/2005 3:26:56 PM PDT by P_A_I
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To: P_A_I
I demand that our RKBA's not be deprived without due process. You do not.

I told you, I would be more than willing to subject him to more "due process", but I doubt that he would want it.

Exactly. That is their duty, under their oath to support the Constitution.

Find a better case & plead it that way. The defendant didn't make that claim in this one.

108 posted on 05/06/2005 3:49:42 PM PDT by GoLightly
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To: risk; yall
risk wrote:

Reinterpreting the Constitution is going to destroy the Republic.

Indeed it will, and imho, it has already started to do so.

I recently ran across this very generalized comment on the basics of our Constitution. - I'd bet that a majority of the FReepers on this board would not agree with all of its points, points that should be clear to anyone who has read the document:

______________________________________


The Constitution of the United States

The U.S. Constitution is the central instrument of all levels of government in the USA and the "supreme law of the land".

  It is the oldest written Constitution in the world that is in force.  It was written in 1787 in Philadelphia by the Continental Congress of the new American republic and was officially adopted in 1789.

  The objective of the writers was to outline the structure of a new, strong central government after the years of weakness and chaos resulting from the preexisting "Articles of Confederation and Perpetual Union" which loosely bound the colonies together since 1778.

The U S Constitution outlines the structure and powers of the 3 branches of government (executive, legislative, judicial) and the 3 levels of government (federal, state, local). 

The basic principles of the Constitution are the same today as when it was written:

1--The 3 branches of government (executive, legislative, judicial) are separate and each is checked and balanced off by the power of the other two, and by the powers of the States and the people.

  2--The U S Constitution is supreme. 

3-All persons are equal before the law, as are all States. Each State must have a republican form of government and respect the law of other States, and the individual rights of the people. 

4--The people can only change the U S Constitution by the methods and according to the principles outlined within it.

109 posted on 05/06/2005 4:11:21 PM PDT by P_A_I
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To: Sen Jack S. Fogbound

With the first case that came before the Supreme Court, there was someone breathing life into the concept of living document.


110 posted on 05/06/2005 4:13:40 PM PDT by joesbucks
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To: P_A_I
1--The 3 branches of government (executive, legislative, judicial) are separate and each is checked and balanced off by the power of the other two, and by the powers of the States and the people.

In addition to these checks, I would add two more:

  1. The press, including Free Republic and other electronic means for exchanging information such as FAX (think: Poland and Russian Samizdat), E-mail, and independent TV. Only a free press, unlicensed, and unfettered by gag orders, topic windows, and election-related calendars will be effective. CFR (campaign finance reform) is unconstitutional.
  2. The second-amendment protected right of the people to keep and bear military-grade weapons. After the power to persuade, and in defense of our right to freely communicate with each other, this may be the most important freedom of all in defending each of the others. Silveira v. Lockyer is unconstitutional.
I also agree that changing the Constitution is the only way to impart interpretive change to its meaning (or even to add to it).

People who want to change what the Constitution means should be free to discuss that and propose any change that follows the guidelines of life, liberty, and the pursuit (not the promise of it) of happiness for individuals. These rights are very narrowly defined in terms of what individuals can do without including others. There are no collective rights.

111 posted on 05/06/2005 4:42:09 PM PDT by risk
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To: risk

Well said..

-- Refresh my memory, was Silveira v. Lockyer appealed to the USSC? - And didn't Thomas & Scalia vote to deny a hearing?


112 posted on 05/06/2005 5:42:57 PM PDT by P_A_I
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To: P_A_I
Judge Reinhardt ruled in Silveira v. Lockyer that the RKBA is collective, e.g., for the state national guard only. I don't think Silveira v. Lockyer has been heard yet by the supreme court. While no other freedom encased in the bill of rights is collective, and plenty of supporting discussion exists from our founding fathers and the authors of the second amendment, Reinhardt flouts tradition and invents the notion that human rights can involve anyone but individuals, and the government has rights! This is an essential weapon in the left's attempt to force collectivism on us through government authority, and the implications go far beyond the right to keep and bear arms. But a case (Bach v. Pataki) that depends on it has been appealed, and is due to be heard by the second district court and then appealed from there.
113 posted on 05/06/2005 6:27:15 PM PDT by risk
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To: Mr. Blonde

The fact that a right wasn't enumerated in the Constitution doesn't mean it didn't exist. There was tremendous opposition to writing the Bill of Rights, because the founders believed such a bill would be used to LIMIT rights rather than guarantee them. The 9th Amendment was added to assure that the people had many rights besides those enumerated.

So they aren't growing. They are being identified by the courts.

The problem I have with a right to privacy is that it is being used to override more essential rights: those of life and liberty. When your unenumerated right infringes upon my enumerated right, then we have a fundamental violation.


114 posted on 05/06/2005 6:38:10 PM PDT by gitmo (Thanks, Mel. I needed that.)
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To: risk

- Silveira v. Lockyer - Rejected by Supreme Court!

Address:http://www.gunownersalliance.com/Silveira_vs_Lockyer-02.htm Changed:10:12 PM on Sunday, December 28, 2003


I couldn't find the info, but if memory serves the court was unanimous in their rejection, and gave no reason.

Another strike against our two 'Conservatives' on the bench.


115 posted on 05/06/2005 6:41:01 PM PDT by P_A_I
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To: P_A_I
nother strike against our two 'Conservatives' on the bench.

Disturbing.

116 posted on 05/06/2005 8:02:55 PM PDT by risk
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To: gitmo

My point is some would consider the rights to be growing by the justices identifying them.


117 posted on 05/06/2005 10:29:59 PM PDT by Mr. Blonde (You know, Happy Time Harry, just being around you kinda makes me want to die.)
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To: Texas Songwriter

I agree... the left won't like the lack of the "living" Constitution. Can you believe they have names for this stuff now?


118 posted on 05/07/2005 6:49:45 PM PDT by CIDKauf (No man has a good enough memory to be a successful liar.)
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To: risk

2nd amendment actually says "life, liberty, and property". Interesting that I don't know where "pursuit of happiness" came from. I'll check it out. Almost like the pledge of allegiance, which originally did not "under God" in it.


119 posted on 05/07/2005 6:52:49 PM PDT by CIDKauf (No man has a good enough memory to be a successful liar.)
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To: CIDKauf
You mean the fifth amendment.

To be fair, the constitution simply reserves powers for the federal government; this doesn't mean that states and the federal government have to execute criminals. On the other hand, history and this passage indicate that our founding fathers and their descendants did use capital punishment.

There seems to be an almost effeminate apprehension toward execution of heinous criminals. I attribute this to the loss of consistent morals that the 20th century and post-modernism have brought us.

Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

120 posted on 05/07/2005 7:30:12 PM PDT by risk
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To: CIDKauf
By the way, John Locke articulated the rights of man that our founding fathers agreed were the foundation of sound government.
He expressed the radical view that government is morally obliged to serve people, namely by protecting life, liberty, and property. He explained the principle of checks and balances to limit government power. He favored representative government and a rule of law. He denounced tyranny. He insisted that when government violates individual rights, people may legitimately rebel. --Jim Powell at the Foundation for Economic Education.

121 posted on 05/07/2005 7:33:37 PM PDT by risk
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To: Bahbah

The sooner this man is the Chief Justice, the happier I will be.


122 posted on 05/07/2005 7:37:27 PM PDT by PrkChps (There really, really are conservatives in Massachusetts!)
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To: GoLightly

The problem I have with the majority decision on that case is that it allows interntional criminals to own guns here.

If I remember right, that particular code had only been used in about 6 cases, so it was hardly doing much damage to the second amendment rights of most Americans who by and large do not travel outside the country and break laws while doing so.

Some make the argument that a foreign court should not have jurisdiction in whether or not a person should be stripped of his right to bear arms here. In fact, that is not what the law did. What it did was to allow the U.S. government to consider a foreign criminal unworthy of gun ownership here in this country. That was not a foreign court stipping you of your right to bear arms, that was our government.

So as usual, the libs on the Supreme court ignore the congress and changed the law to bad effect. In this case, allowing international criminals to own guns here.


123 posted on 05/07/2005 8:00:56 PM PDT by planekT (Go DeLay, Go!)
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To: risk

Locke, Berkeley, and David Hume "The Empiricists", doubted that man could concieve in his mind that there was a God, unless that God placed the thought in the mind of the man. You're right, I did mean the 5th amendment


124 posted on 05/07/2005 8:22:19 PM PDT by CIDKauf (No man has a good enough memory to be a successful liar.)
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To: risk

I'm really being dumb...I believe the "pursuit of happiness" is the Declaration of Independence rather than the 5th amendment


125 posted on 05/07/2005 8:27:11 PM PDT by CIDKauf (No man has a good enough memory to be a successful liar.)
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To: planekT
The entire code is long. I posted a link to it earlier in this thread, but don't feel like going back to it & checking to see if there are specific provisions in it about the exact type of case you're talking about.

What it did was to allow the U.S. government to consider a foreign criminal unworthy of gun ownership here in this country.

If the specific clause that this case was about is the one that we've used to protect against the kind of individual you're talking about here, our legislators best get on the ball & amend the code.

My concern is about little Johnny Taliban (an American) involved in blowing up a pizzeria in Israel, getting convicted for it there, serving a couple of years & then coming home to bring his war here. The majority on SCOTUS wants the US to be blinded.

126 posted on 05/07/2005 8:28:16 PM PDT by GoLightly
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To: CIDKauf

Yes, right. Thanks for mentioning the "planted thoughts" idea. It fits with a notion Lewis and Tolkien had about Christianity being the ultimate myth, and one God would have suggested to help human beings find the truth. I suppose they were just extending Lock, et. al.


127 posted on 05/07/2005 9:03:24 PM PDT by risk
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To: GoLightly

By foreign, or international criminal, I mean anyone who has been convicted in any court other then one here in the U.S. He could be Johnny Taliban (a U.S. citizen), or he could be someone from another country who comes here and gains citizenship (or he could have dual citizenship at the time he committed the crime, for that matter).

I'll check back through the thread for your link. I don't think your fear of the Johnny Taliban scenario is unjustified, and I'm pretty sure that the law said "any court" because it in fact did mean any court, for exactly the reasons that you and I have laid out here.

While Mr. Small may have just smuggled a few guns into Japan illegaly, he could just as well have been a much more heinous character, and with the new decision, it wouldn't matter.

On the other hand, if he was convicted of sticking gum under a table in some nutty country where they lock you up for that, well, like you said, "it depends". Certainly there probably should be some exceptions made in those likely rare cases.

But to just open yourself up to foreign criminals without a care is pure stupidity.



128 posted on 05/07/2005 9:15:52 PM PDT by planekT (Go DeLay, Go!)
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To: planekT
From the ruling in the other thread:

Some time later, a search of his residence, business premises, and automobile revealed a .380 caliber Browning pistol and more than 300 rounds of ammunition. Id., at 47a-51a, 98a-99a. This prosecution ensued.

What I would like to know, what they searching for? The police had to have had cause to do the search. Were they looking for the gun or were they trying to prove something else against him & just happened to find the gun in the process of doing the search?

129 posted on 05/07/2005 9:56:28 PM PDT by GoLightly
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To: Constitutionalist Conservative
“The Constitution is not a living document. It’s a legal document, and legal documents do not change.”
This isn't going to be well received in liberal land.

For that matter, there are some right here at FR who believe that the Constitution is a living document who won't receive this well either.
It's already out there in their posts, saved forever, for those who care to look.

Going to have to remember that line..."It’s a legal document, and legal documents do not change." Scalia

130 posted on 05/07/2005 10:08:01 PM PDT by philman_36 ("It’s a legal document, and legal documents do not change." Scalia)
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To: GoLightly

It could have been on something else, but you'd think we'd have heard about that.

As the law had been interpreted up until the SCOTUS decision, it would have been enough that he lied on the application.


131 posted on 05/07/2005 10:24:43 PM PDT by planekT (Go DeLay, Go!)
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To: planekT
It could have been on something else, but you'd think we'd have heard about that.

Not necessarily. If it was something else, they may not have been able to make a case against him.

As the law had been interpreted up until the SCOTUS decision, it would have been enough that he lied on the application.

You're right. The ruling made his lie, not a lie. The sentence by the Japanese court didn't count & it was unnecessary to to admit to it on the application.

132 posted on 05/07/2005 10:33:13 PM PDT by GoLightly
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