Bench Memos

“Dead, Dead, Dead”-Wrong Reporting on Scalia

Watching a television news show the other night, I was surprised to see the news crawl report on the bottom of the screen that Justice Scalia had declared in Dallas that the Constitution is “dead, dead, dead.” That riposte to the “living Constitution” nonsense contains a troubling ambiguity that will confuse many listeners (is Justice Scalia saying that the Constitution is no longer in effect?), and I had thought that Scalia had therefore stopped using that shorthand.

Fortunately, I have learned from an e-mail from Bryan Garner, the co-author with Scalia of Reading Law: The Interpretation of Legal Texts, that the Dallas Morning News account (titled “Constitution a ‘dead, dead, dead’ document, Scalia tells SMU audience”)—the source for the crawl item—was entirely botched. What Scalia actually said was:

I used to say that the Constitution is not a living document. It’s dead, dead, dead. But I’ve gotten better. I no longer say that. The truth is that the Constitution is not one that morphs. It’s an enduring Constitution, not a changing Constitution. That is what I’ve meant when I’ve said that the Constitution is dead.

As of yesterday, according to Garner, Google showed 1.8 million hits for the misquotation.

Garner also points out that the Dallas Morning News article, while citing Garner’s political differences with Scalia on gay marriage and gun control, “fail[ed] to follow up with the only reason that mentioning [those differences] was relevant” to their joint lecture about their book:

Justice Scalia and I worked through 700 cases while writing our 600-page book and have not found a single case on which we disagree about legal interpretation. The point is that judicial textualism leads to consistent results, regardless of political bent.

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