It’s hardly news that Justice Antonin Scalia does not much care for the term living constitution. In late 2011 before a U.S. Senate Committee, he went on a bit of a rant over methods of constitutional interpretation and ended by saying that he was “hopeful the living constitution will die.”
Longtime Supreme Court correspondent Tony Mauro, opting for an event featuring the increasingly predictable justice at a George Washington University instead of say ACS’s annual Supreme Court Preview, found Scalia once again championing so-called originalism and deriding a serious approach to interpreting the broad language of the U.S. Constitution.
Mauro reported that Scalia “urged everyone to celebrate the birthday of the U.S. Constitution tomorrow – except those who think the document is an ‘empty body’ whose meaning can be filled in by an activist judge. In that case, Scalia said in his best New York accent, ‘Fugget about the Constitution!’”
In a post today for ACSblog’s symposium on Constitution Day, which runs through this week, Erwin Chemerinsky, dean and distinguished law professor at the University of California, Irvine, explains why originalism, the method on constitutional interpretation trumpeted by Scalia, is inherently wobbly.
It’s obvious, Chemerinsky writes, why originalism has not been embraced by a majority of Supreme Court justices: “it makes no sense to be governed in the 21st century by the intent of those in 1787 (or 1791 when the Bill of Rights was adopted or 1868 when the Fourteenth Amendment was ratified).”
During that 2011 testimony before the Senate, Scalia was joined by Justice Stephen Breyer, who after listening to Scalia; urged the senators to remember John Marshall’s words, “It is a Constitution we are expounding.” According to Breyer, Marshall understood that the framers were thinking about a document that would endure for generations to come.
Scalia will likely continue to pine for the death of a living a constitution, but as Chemerinsky and many other constitutional law scholars have noted time and again the document contains, broad language for a purpose, one that eludes Justice Scalia.