Justice Scalia at AEI Gathering Takes Aim at So-Called ‘Living Constitutionalists’

September 21, 2011

by Jeremy Leaming

To honor Constitution Day, Supreme Court Justice Antonin Scalia took to a podium at the American Enterprise Institute to heap plaudits on the renowned political science professor Walter Berns and knock so-called “living constitutionalists,” as advancing an inconsistent and wobbly method of constitutional interpretation.

“I can think of no more fitting way to mark this event then [with] a lecture series in honor of my good friend Walter,” Scalia said Sept. 20 at AEI’s “Walter Berns and the Constitution: A Celebration of Constitution.”

Saying Berns is likely best known for his 1987 book, Taking the Constitution Seriously, Scalia said he would take a bit of time to “discuss a particular way of taking the Constitution seriously, mainly taking the Constitution seriously as law.”

But before doing so, Scalia noted a period of time when a group of jurists allegedly failed to take the Constitution seriously.

“Since about the era of the Warren Court, American jurisprudence has been dominated by a different view of the Constitution – this view treats the document not as a legal text, with a fixed meaning, ascertainable through the ordinary tools of legal interpretation, but rather as a collection of indeterminate, aspirational provisions; a living document that serves as sort of a jumping off point for the creation of rights thought to be necessary in the current day and age,” he said.  

Scalia said a case decided during the Supreme Court’s last term, NASA v. Nelson, offered a fine example of our “legal culture” losing sight of the Constitution’s “fundamentally legal nature.” The respondents in the case, Scalia, continued argued that the federal government had violated their constitutional rights by requiring them to undergo background checks. But the respondents’ brief, according to Scalia, did not “once identify the provision of the Constitution the government was alleged to have violated.”

In “true” living constitutionalist style, Scalia charged that the respondents must have assumed the high court would view the right to informational privacy “to be a good thing, and like so many other good things, it would be read into the Constitution, never mind the text. The majority opinion, I’m happy to say, did not accept that invitation, but I’m not happy to say, it did not close the door to such claims either. My own view, that there is simply no constitutional right to informational privacy did not carry the day.”

Too often, Scalia continued, the Supreme Court has gone the other way by ignoring the Constitution’s text in an effort to reach desirable outcomes.

An example he said was Lawrence v. Texas, where the Supreme Court in a majority opinion led by Justice Anthony Kennedy, overturned a Texas law criminalizing sodomy.

“Should there be a right to consensual sodomy?” Scalia asked. “The majority of my court thought so. And so in a case called Lawrence v. Texas, such a right was read into the Fourteenth Amendment’s due process clause, which as a guarantee of procedural fairness is textually incapable of containing such a substantive right.

“Should there be a right to abortion,” Scalia continued. “The Roe Court thought a right to abortion would be a good thing and the Court reasoned if it is good, then it is so. Of course this sort of freewheeling approach to constitutional interpretation is fundamentally [at odds] with the institution of judicial review.” 

Citing Chief Justice John Marshall’s opinion in Marbury v. Madison, Scalia said a crucial premise of his chain of reasoning was that “the Constitution is at bottom, an ordinary legal text, one with a fixed meaning, ascertainable through the lawyers’ usual tools of interpretation.”

“If the Constitution were not law in this sense,” Scalia continued, “but instead a living document meant to be updated according to the felt necessities of the time, it would be entirely senseless to entrust its exposition and enforcement to the judicial branch. After all most judges are only lawyers, and lawyers are, at best, trained to ascertain the meaning of legal texts, through careful textual analysis and attention to the historical context that helps one identify the original public meaning of a legal provision.”

He continued, “If current social values are to be the yardstick for determining the Constitution’s meaning, then it would seem natural to entrust the task of constitutional interpretation, as in England, to the legislature, and to dispense with judicial review altogether.”

The “Constitution-as-aspiration-approach,” Scalia said is often favorably touted for “permitting the federal judiciary to expand upon the rights and freedoms we all enjoy as Americans. The premise of this argument, that expanding rights and freedoms, is always a good thing, is itself suspect. Unless you are an anarchist, you must believe the governing involves a balancing act between freedom and social order.”

The “Living Constitutionalists,” or those advancing what he dubbed the “Constitution-as-aspiration-approach,” are not only peddling a faulty method of constitutional interpretation, but one that is only applied to the rights they hope to see expanded. For example, property rights, which Scalia suggested has been gutted overtime by the Supreme Court, are not of much concern to this group.

Berns has written, Scalia said in conclusion, that the framers “provided for a Supreme Court and charged it with the task, not of keeping the Constitution in tune with the times, but to the extent possible, of keeping the times in tune with the Constitution. That is a magnificent line, and the way to make it a reality, is take the Constitution seriously as law.”

For a different take on constitutional interpretation, from professors who do take the endeavor seriously, see ACS’s “What the Constitution Means & How to Interpret It,” a curriculum based on Keeping Faith with the Constitution, by Goodwin Liu, Pamela S. Karlan and Christopher H. Schroeder.