Bench Memos

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Re: Eastland on Scalia


I’d just like to second Matt’s praise for Terry Eastland’s excellent Weekly Standard cover piece on Justice Scalia’s two decades on the Court.  Definitely worth reading.


There’s one point—Scalia’s criticism of the “living Constitution” moniker—that I wish Eastland had more space to amplify.  As camouflage for its invention of new “rights,” the “living Constitution” approach purports to adapt an obsolescent document to changing times, but it is not necessary to that task and in fact disserves it.  The original Constitution in fact leaves the vast bulk of issues to the legislative processes for decision and thus provides ample flexibility (even apart from its provisions for amendment) for the people to revise policies as circumstances change.  By contrast, the “living Constitution” rhetoric is used to entrench as “rights” the preferences of current elites and to hinder the ability of future generations to change policies on those matters.


Eastland cites Scalia’s quip favoring a “dead Constitution” over the “living Constitution”.  But what Scalia really favors is the actual, genuine, sturdy Constitution over the phony, malleable version that living constitutionalists concoct.

Tags: Whelan


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