Bench Memos

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Re: That Rascal Scalia


Ed Whelan may be right when he says below that Justice Scalia didn’t mean to call anyone an idiot, but only wished to call attention to the foolishness of a rhetorical gambit used by “living Constitution” proponents. But since I am completely in sympathy with Ed’s larger point, and Robby George’s views quoted by him—and above all with Justice Scalia’s constant war on this pernicious “living Constitution” stuff—I’ll say just a few words more about what was worth criticizing in Scalia’s latest foray.

First, I really do wish Justice Scalia would let journalists record his public remarks. Then there would be no “did he really say that?” questions after one of his speeches. Maybe Scalia enjoys a gleeful chuckle over this sort of mini-controversy, but it doesn’t serve any useful purpose. And C-Span broadcast of his speeches (such as Justice Thomas permits), or website posting of their texts (such as the late Chief Justice Rehnquist routinely did at the Court’s website) would serve a very useful purpose of public education. And Ed and I would not be guessing at what he really meant to say, based on incomplete or doubtful press accounts.

Second, assuming that Scalia’s remarks in Puerto Rico were reported fairly, I still have to say he was not in top form in making his argument. On the larger question about the “living Constitution,” Scalia is right. But he is used to being right, he has run through most of these arguments repeatedly, and it looks like he got lazy and cut some dialectical corners. Turning a metaphor (“living Constitution”) or simile (“like a living organism”) that is widely used, into a literal statement no one makes (“the Constitution is a living organism”), in order to knock it down as idiotic, is a classic straw-man move.

I should have given Justice Scalia credit for saying something much like what I said in my original posting, that “living Constitution” advocates want judges and not the people or their representatives to govern us. But associating the wrongheaded “living Constitution” view with the perfectly unobjectionable view that the Constitution ought to be treated as flexible—as it may and should be by our representative institutions—was an uncharacteristically bumbling conflation for Scalia to make. That was his second error, if the AP report did him justice.


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