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Bench Memos

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Re: That Rascal Scalia!



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I would like to offer a more ardent defense than Matt did of Justice Scalia’s reported comment that one “would have to be an idiot” to believe the “living Constitution” premise that the Constitution “has to change with society.” I don’t think that Scalia was calling advocates of the “living Constitution” theory idiots. Rather, I suspect that Scalia assumes that “living Constitution” advocates don’t genuinely believe that the Constitution “has to change with society” but merely find it rhetorically useful to argue that point. Indeed, since “living Constitution” advocates seek to entrench their own policy preferences as constitutional “rights” and thereby deprive succeeding generations of Americans of the flexibility to adapt policies to changing circumstances, it is difficult to see how they could really be thought to favor a Constitution that changes with society. What they instead want is a re-imagined Constitution that freezes their favored positions into place.

The brilliant Princeton professor Robert P. George (who, I am pleased to say, is a member of the board of the Ethics and Public Policy Center) has just published an excellent City Journal essay in which he briefly discusses the “absurdity” of the “living Constitution” theory:

Lacking basic knowledge of the American Founders’ political philosophy and of the principles that they enshrined in the Constitution, students often fall prey to the notion that ours is a “Living Constitution,” whose actual words matter little. On the Living Constitution theory, judges—especially Supreme Court justices—serve as members of a kind of standing constitutional convention whose role is to invalidate legislation that progressive circles regard as antiquated or retrograde, all in the name of adapting the Constitution to keep up with the times.It doesn’t take much to expose the absurdity of this theory. The purpose of enshrining principles in a constitution is to ensure that the nation’s fundamental values remain honored even if they fall out of fashion. As for adapting the nation’s laws to keep up with the times, legislators can—and should—take care of that task. The proper role of courts when they exercise the power of judicial review is essentially a conserving (you could even say “conservative”) one. It is not to change anything but rather to place limits on what one can change.

Does this mean that our Constitution is “dead”? No: the Constitution’s principles are “living” in the sense that they can apply validly even to matters that the Founders themselves could not have anticipated. The original understanding of Fourth Amendment principles governing searches and seizures, for example, can reliably extend to cover today’s controversies about computer files, cyber-storage, and electronic surveillance. So to reject, as we should, the Living Constitution and its anticonstitutional doctrine of virtually unlimited judicial power is by no means to treat our Constitution as a dead letter. Rather, it is to treat the Constitution as law—supreme law—binding on, and limiting the power of, every branch of government and agency of the state, including the courts.

It is a travesty that our nation’s colleges and law schools produce graduates who don’t understand these elementary points and who don’t recognize the “living Constitution” theory as the fraud or idiocy that it is.



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