News Intelligence Analysis
Justices Scalia and Alito Are Right. Professor
Strang Will Elaborate.
In a speech on February 13, 2006 sponsored by The Federalist Society for Law and Public Policy Studies, Justice Scalia defended his long-held belief in sticking to the plain text of the Constitution "as it was originally written and intended."
February 16, 2006 12:58 PM EST
God bless Antonin Scalia, an Associate Justice of the United States Supreme Court and a principled, learned, and brilliant originalist ready, willing and able to speak clearly, concisely and authoritatively while less wise and less bold persons hem and haw.
Originalism requires judges to adhere to the meaning of the text
of the Constitution as it was understood when ratified, not to
amend it to suit themselves under the guise of judicial interpretation.
In constitutional adjudication, therefore, judges may only apply
the positive law of the Constitution and may not, generally,
directly apply natural law norms. According to this judicial
philosophy, there is no room for personal, political or religious
beliefs in constitutional interpretation.
To those who assert that the Constitution "lives" and the courts are supposed to change it as society changes, Justice Scalia declared: "You would have to be an idiot to believe that. The Constitution is not a living organism, it is a legal document."
In a speech on February 13, 2006 sponsored by The Federalist
Society for Law and Public Policy Studies, Justice Scalia defended
his long-held belief in sticking to the plain text of the Constitution
"as it was originally written and intended." As the
Founders of America expected and the Framers of America's Constitution
intended.
"Scalia does have a philosophy, it's called originalism,"
Justice Scalia stated. "That's what prevents him from doing
the things he would like to do," he continued.
Referring to the notion of a "living Constitution," Justice Scalia explained: "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."
And then deftly dismissed it as daft: "But you would have to be an idiot to believe that. The Constitution is not a living organism, it is a legal document. It says something and doesn't say other things."
And then explained that "living constitution" advocates distrust democracy and want matters to be decided "not by the people, but by the justices of the Supreme Court." "They are not looking for legal flexibility, they are looking for rigidity, whether it's the right to abortion or the right to homosexual activity, they want that right to be embedded from coast to coast and to be unchangeable."
During his confirmation hearing, now Associate United States Supreme Court Justice Samuel A. Alito, Jr. offered this more elaborate statement as to how a judge sworn to support the Constitution is supposed to interpret it:
"In interpreting the Constitution, I think we should proceed in the way we proceed in interpreting other important legal authorities; in interpreting statutes, for example. I think we should look to the text of the Constitution, and we should look to the meaning that someone would have taken from the text of the Constitution at the time of its adoption.
"But I think we have to recognize that the Constitution is very different from statutes in some important respects.
"Statutes are often very detailed, and they generally don't exist without revision for very long periods of time.
"The Constitution was adopted to endure throughout the history of our country. And considering how long our country has existed, it's been amended relatively few times.
"And the magic of that, I think, is that it sets out a basic structure for our government and protects fundamental rights. But on a number of very important issues, I think the framers recognized that times would change, new questions would come up. And so they didn't purport to adopt a detailed code, for example, governing searches and seizures. That was the example I gave yesterday, and I'll come back to it.
"They could have set out a detailed code of search and seizure; they didn't do that. They said that the people are protected against unreasonable searches and seizures, and they left it for the courts — and, of course, the legislative body can supplement this — to apply that principle to the new situations that come up.
"Now, when that is done, that doesn't amount to an amendment of the Constitution or a changing of the Constitution. It involves the application of a constitutional principle to the situation at hand."
Fortunately for America, the diehard anti-Alitoists' worst could not block his confirmation.
For those who want a much longer explanation, Lee Strang, Assistant Professor at Ave Maria Law School in Ann Arbor, Michigan soon will provide it.
Here is his abstract for his upcoming article:
"There is substantial scholarly disagreement on whether and in what manner prior decisions of the United States Supreme Court interpreting the Constitution bind it later in time. This is despite the consensus of American legal practice that prior constitutional decisions do bind later courts. At the heart of the debate surrounding precedent is the tension between our written Constitution, which is the supreme law of the land, and the role of the unelected Supreme Court in exercising constitutional judicial review. Further, the existence of numerous and important nonoriginalist precedents is used by critics of originalism as an (in their view, often decisive) argument against originalism.
"In this Article I will offer a theory of constitutional precedent within an originalist framework. I will argue that a limited respect is due some nonoriginalist constitutional precedent because of the larger societal goal of effectively pursuing the common good.
"I will initially describe the problem that precedent has posed for scholars and courts in the area of constitutional adjudication. First, I will explain what I mean by a theory of precedent. Second, I will briefly discuss the debate over the proper interpretative methodology of the Constitution. Third, I will show how, for any plausible theory of constitutional interpretation, there will be precedents that, under the methodology, are mistakes. Lastly, I will review attempts by originalist scholars to elucidate a theory of precedent in constitutional adjudication.
"I will then lay out my theory of originalist precedent. First, I will describe the originalist interpretative methodology I am assuming for purposes of this Article. Central to the originalist methodology that I describe is the concept of the common good. Then, I will argue that courts should not overrule nonoriginalist constitutional precedent only when overruling the precedent would gravely harm society's pursuit of the common good.
"Originalism requires judges to adhere to the meaning of the text of the Constitution as it was understood when ratified. In constitutional adjudication, therefore, judges may only apply the positive law of the Constitution and may not, generally, directly apply natural law norms. By contrast, when determining whether to overrule or limit nonoriginalist precedent judges will be relatively unconstrained and will have to make those determinations by looking to what the common good of society requires. As a result, I will briefly discuss a theory of judicial virtue to account for how judges should exercise this discretion."
Please read the whole article when it becomes available. In the meantime, take Justice Scalia's word for it: the Constitution is not living. And ponder why those who claim it is by and large also insist that a fetus is NOT to be treated as living for legal purposes.
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