Scalia Urges Americans to Embrace the Gridlock; Hopes the ‘Living Constitution’ will Die

October 6, 2011

by Jeremy Leaming

If only the populace had a better understanding of how the American government system is supposed to function, there would be a lot less complaining about inaction in Washington on a host of pressing national concerns, such as the expanding gap between the nation’s wealthiest and everyone else.

In a Senate hearing two of the high court’s longest serving members, Justices Antonin Scalia and Stephen Breyer, attempted to educate the public on the structure of the federal government and the role the judiciary plays.

The two justices hold different views on how to perform their jobs, which involves a heavy amount of constitutional interpretation. But during the event, those differences were only fleetingly touched upon by the justices. More often than not it appeared Breyer and Scalia were intent on showing Congress just how wonderfully a Republican-appointed justice and a Democratic-appointed justice can get along.

Scalia, however, in his opening remarks loudly proclaimed that the other two branches of the government, legislative and executive, despite the appearances of constant rancor and little accomplishment, are performing just as the nation’s founders had planned.

The country, Scalia said, needs to learn to love the dysfunction, “to learn to love the gridlock." It’s what the founders wanted. Such sentiment that the federal government is working when not working is popular with Tea Party activists and libertarians, but likely tiresome for large numbers of Americans who have seen nothing but dysfunction and gridlock on Capitol Hill. But again, Scalia faulted Americans for failing to appreciate the dysfunction, for “they don’t understand the genius of our Constitution.”

He noted that’s why he does so much speaking to students about the Constitution, since “we are not teaching it very well.”

Breyer, did not claim Americans should embrace gridlock, but he essentially agreed with Scalia that civics is poorly taught to the nation’s youngsters, noting retired Justice Sandra Day O’Connor’s ongoing work promoting civics education.

Indeed the two justices rarely disagreed during the two-hour plus hearing. Instead the Atlantic’s Andrew Cohen pretty much nailed it, writing, “They came. They kibitzed. They tossed out fluffy platitudes about judicial restraint and constitutional boundaries.”   

Near the end of the hearing Sen. Jeff Sessions tossed a rhetorical question to Scalia about how the Constitution should be interpreted.

Moving into the subject, Scalia said that “the controversial nature of recent confirmation proceedings is attributable to some extent to the doctrine of the living Constitution, because when you indeed have a Supreme Court that believes that the Constitution means what it ought to mean in today’s times, it seems to me a very question for the Senate to ask, or for the president to ask when he selects the nominee, ‘what kind of a new Constitution would you write?’ You know, ‘Do you believe this new right is there or this old right isn’t there?’ That seems to me … It’s much less important whether the person is a good lawyer, whether the person has a judicial temperament, what’s most important is, ‘What kind of a new constitution are you gonna write?’ And that’s crazy; it’s like having a mini constitutional convention every time you select a new judge. So I’m hopeful the living constitution will die.”

Breyer responded, saying he would like the senators to think of John Marshall’s famous words, "‘It is a Constitution that we are expounding.’ And he’s thinking that document has to last us for 200 years. And as I say, that doesn’t mean you change the words, but the hardest problem in real cases is that the words, ‘life,’ ‘liberty,’ or ‘property,’ do not explain themselves, ‘liberty.’ Nor does ‘the freedom of speech,’ say specifically what counts as ‘the freedom of speech.’"

Applying the Constitution’s values to ever-changing situations, therefore, cannot be done by a computer. It calls for some human judgment, Breyer said. Watch video of the hearing below or by clicking here.