Balkinization

Nino and me, in full agreement (well, almost)

At an address at the University of Mississippi, Justice Antonin Scalia spoke out against the dangers of treating the Constitution as a "living document." (courtesy of Howard Bashman as well as Patrick Carver, the Ole Miss Conservative)

Scalia, 67, a conservative justice known for legal decisions based on strict interpretations of the U.S. Constitution, said people who want change in society should use the democratic process, not the courts, to bring it about.
"What makes you think that a living Constitution is going to evolve in the direction of greater freedoms?" Scalia asked. "It could evolve in the direction of less freedom, and it has."

When the man is right, he's right. When judges make up constitutional doctrines that keep democratically elected legislatures from reforming society and securing liberty and equality, they are failing to do their job properly.

A few examples might include Scalia's own votes to strike down affirmative action programs in Croson and Adarand, and his votes to strike down damage remedies when state governments violate federal civil rights laws in cases like Kimel and Garrett.

On the other hand, Scalia pointed out, when judges refuse to enforce constitutional guarantees against unconstitutional legislation, they also fail to do their job, and this is so even if the meaning of the constitutional guarantee is more expansive than the original understanding:

In 1989, he cast the deciding fifth vote in Texas v. Johnson, the decision that struck down laws against burning the American flag. At the time, conservatives were incensed. Thursday afternoon, Scalia told the UM crowd in that case and others, he was handcuffed by the Constitution.
"I would have been delighted to throw Mr. (Gregory Lee) Johnson in jail," Scalia said of the man tied to the flag case. "Unfortunately, as I understand the First Amendment, I couldn't do it."

Now there's no evidence of which I am currently aware that flag burning was protected under the original understanding of the Free Speech clause in 1791, so Scalia is not making an argument from the original understanding. Rather, he is making an argument, as he forthrightly says, from what he understands the First Amendment to mean.

Good for him.

Now if, according to Scalia, the best interpretation of the meaning of the First Amendment has changed significantly from the original understanding-- a position which Scalia must apparently hold given his views not only on flag burning but on many other subjects like commercial speech-- then it is up to judges to do the best job they can in interpreting the document so as to protect fundamental rights from legislative depredations.

But please, whatever you do, don't call this a living Constitution.

Posted 6:44 PM by JB [link]