Seeing Constitution as enduring, not living
by J.R. Labbe
http://www.star-telegram.com/columnist/labbe2.htm
Updated: Thursday, May. 11, 2000 at 16:53 CDT
It's fashionable these days for folks to describe the U.S. Constitution as a "living document."
Yup -- "living," as in something that breathes.
Being written more than 200 years ago by a bunch of men who could never have imagined the incredible social and technological changes in America today, it's reasonable to postulate that the Constitution would have to change in order to stay viable and applicable in a modern world. Right?
Wrong, says Supreme Court Justice Antonin Scalia.
The "living document" concept drives him up the proverbial marble wall. And although he concedes that it would be hard to persuade Americans to accept the notion of a "dead Constitution," he prefers to think of it as an enduring Constitution.
Scalia, who was in town Wednesday to kick off the Eldon B. Mahon Lecture Series for the Texas Wesleyan University School of Law, calls himself an "originalist" when it comes to interpreting the 211-year-old document. That means when he is deciding the constitutionality of a legal case that has come before the nation's highest court, he looks to what was allowed or what was forbidden when the Founding Fathers drafted the document.
"The Constitution does not change in its meaning," Scalia said. "What it approved back in 1789, or 1791 if talking about the Bill of Rights, it approves of now. What it forbad then, it forbids now."
It wasn't a perfect document from Day 1. It did things like withhold the right to vote based on one's gender, race, property ownership and literacy. That's why the framers also wrote in an amendment process. Through it, we got advances like the 19th Amendment, which guaranteed women the right to vote.
But consider: In 211 years, it has only been amended 27 times, and 10 of those came in one fell swoop. They came darn close to getting it right from the start.
Scalia readily admits that his originalist thinking is on a plane different from that of most of the lawyers and judges you'll find in America today.
"You can fire a cannon loaded with grapeshot in the faculty lounge of any major law school in the country and not strike an originalist," Scalia told the audience at the Bass Performance Hall. And that troubles the justice, who was a 1986 Reagan appointee to the court. He received unanimous confirmation from the Senate -- something this country may never see again, considering how justices these days are selected not on their constitutional acumen but on whether their philosophies match the prevailing party's beliefs.
The notion that the Constitution is not static, that it changes with time, is actually embedded in language that the court used in an Eighth Amendment decision about cruel and unusual punishment. The Constitution, the judges decided, changes to "comport with evolving standards of decency that reflect a maturing society."
As Scalia quipped, "How come societies only mature -- they never rot?"
Enough evidence exists to argue that this one is rotting, and one of the reasons may be because too many people have decided that the underlying bedrock of our nation can mean whatever the prevailing philosophers -- translation: politicians and judges -- of the day want it to mean.
The Constitution outlines the rights of the people and the restrictions on the federal government that have never changed. Those issues not specifically detailed in the document are left to the people to decide through their duly elected representatives, and not by declaration by a panel of judges or the executive branch.
The framers designed a representative republic and not a system of popular referendum for a reason. It protects the least of us from the most of us.
But Scalia worries that as a nation we're straying far afield from what the visionary Founding Fathers had in mind: "A Bill of Rights that means what the majority wants it to mean is worthless."
Jill "J.R." Labbe is senior editorial writer and columnist for the `Star-Telegram.' She can be reached at (817) 390-7599.
Send comments to jrlabbe@star-telegram.com
by J.R. Labbe
http://www.star-telegram.com/columnist/labbe2.htm
Updated: Thursday, May. 11, 2000 at 16:53 CDT
It's fashionable these days for folks to describe the U.S. Constitution as a "living document."
Yup -- "living," as in something that breathes.
Being written more than 200 years ago by a bunch of men who could never have imagined the incredible social and technological changes in America today, it's reasonable to postulate that the Constitution would have to change in order to stay viable and applicable in a modern world. Right?
Wrong, says Supreme Court Justice Antonin Scalia.
The "living document" concept drives him up the proverbial marble wall. And although he concedes that it would be hard to persuade Americans to accept the notion of a "dead Constitution," he prefers to think of it as an enduring Constitution.
Scalia, who was in town Wednesday to kick off the Eldon B. Mahon Lecture Series for the Texas Wesleyan University School of Law, calls himself an "originalist" when it comes to interpreting the 211-year-old document. That means when he is deciding the constitutionality of a legal case that has come before the nation's highest court, he looks to what was allowed or what was forbidden when the Founding Fathers drafted the document.
"The Constitution does not change in its meaning," Scalia said. "What it approved back in 1789, or 1791 if talking about the Bill of Rights, it approves of now. What it forbad then, it forbids now."
It wasn't a perfect document from Day 1. It did things like withhold the right to vote based on one's gender, race, property ownership and literacy. That's why the framers also wrote in an amendment process. Through it, we got advances like the 19th Amendment, which guaranteed women the right to vote.
But consider: In 211 years, it has only been amended 27 times, and 10 of those came in one fell swoop. They came darn close to getting it right from the start.
Scalia readily admits that his originalist thinking is on a plane different from that of most of the lawyers and judges you'll find in America today.
"You can fire a cannon loaded with grapeshot in the faculty lounge of any major law school in the country and not strike an originalist," Scalia told the audience at the Bass Performance Hall. And that troubles the justice, who was a 1986 Reagan appointee to the court. He received unanimous confirmation from the Senate -- something this country may never see again, considering how justices these days are selected not on their constitutional acumen but on whether their philosophies match the prevailing party's beliefs.
The notion that the Constitution is not static, that it changes with time, is actually embedded in language that the court used in an Eighth Amendment decision about cruel and unusual punishment. The Constitution, the judges decided, changes to "comport with evolving standards of decency that reflect a maturing society."
As Scalia quipped, "How come societies only mature -- they never rot?"
Enough evidence exists to argue that this one is rotting, and one of the reasons may be because too many people have decided that the underlying bedrock of our nation can mean whatever the prevailing philosophers -- translation: politicians and judges -- of the day want it to mean.
The Constitution outlines the rights of the people and the restrictions on the federal government that have never changed. Those issues not specifically detailed in the document are left to the people to decide through their duly elected representatives, and not by declaration by a panel of judges or the executive branch.
The framers designed a representative republic and not a system of popular referendum for a reason. It protects the least of us from the most of us.
But Scalia worries that as a nation we're straying far afield from what the visionary Founding Fathers had in mind: "A Bill of Rights that means what the majority wants it to mean is worthless."
Jill "J.R." Labbe is senior editorial writer and columnist for the `Star-Telegram.' She can be reached at (817) 390-7599.
Send comments to jrlabbe@star-telegram.com
