Bench Memos

That Rascal Scalia!

The Associated Press reports that at a Federalist Society confab in Puerto Rico last night, Justice Antonin Scalia said those who embrace the notion of a “living Constitution” are “idiots.” Here’s a fuller version of that part of his remarks, according to the AP’s own report:

“That’s the argument of flexibility and it goes something like this: The Constitution is over 200 years old and societies change. It has to change with society, like a living organism, or it will become brittle and break.

“But you would have to be an idiot to believe that,” Scalia said. “The Constitution is not a living organism, it is a legal document. It says something and doesn’t say other things.”

I can almost feel the waves of outrage emanating from all my “progressive” friends who study the law and courts. But I am less certain than I usually am that Scalia should be defended here.

Justice Scalia is well-known for requesting that no one record (on audio or video) his speeches and remarks at public appearances. Maybe he should rethink that, if the AP reporter (Jonathan Ewing) has garbled or omitted something here. But assuming what is probably so, that the reporter has his words exactly right, we still don’t know from this account whether Scalia was speaking from a prepared text, or extemporaneously, or in response to an audience question. In short, we don’t know how much care he took in choosing his words.

Okay. Take all that as given. So what’s wrong with what he said? Not much, but not nothing. It is not literally true, but only a metaphor at best, that the Constitution is a “living organism.” If anyone really believed it “lived,” yep, he’d “have to be an idiot.” It’s a “legal document” that says some things and not others, just as Scalia says. It no more “lives” than the deed to my house.

But his comments targeted those who believe the Constitution is “LIKE a living organism,” and this is not so easily dismissed as Scalia appears to think. It’s wrong, but not for the reasons Scalia gives in the quotation the AP provides.

It is not an altogether modern notion that the Constitution has to be understood as flexible, or else “it will become brittle and break.” In 1819, John Marshall said that ours is “a Constitution intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs.” It would take more space and time than I have here and now to fully explain how different this argument was from the “living Constitution” idea that Scalia was criticizing. But as reported, there is nothing in what Scalia said that would assure us he wouldn’t call Marshall an idiot too.

One difference—not the only one but an important one—is institutional. Who is to do the adapting, the flexible application of the Constitution’s fixed principles to new circumstances? The people and their representatives, or the judiciary? For Marshall it was the former, for today’s “living Constitution” adherents—the Stephen Breyers and their fans in the academy—it is the latter.

I just wish that Justice Scalia would aim his shots more accurately, with a little more care. Or—again—is it that reporters need to be more careful? Justice Scalia, let in the tape recorders!

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