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Opening Arguments

Whimsical justice

Justice Antonin Scalia was on "60 Minutes" trying to explain Originalist constitutional thinking to Leslie Stahl, and he might as well have been talking to the wall:

Scalia has no patience with so-called activist judges, who create rights not in the Constitution - like a right to abortion - by interpreting the Constitution as a "living document" that adapts to changing values.

"It is an enduring Constitution that I want to defend," he says.

"But what you're saying is, let's try to figure out the mindset of people back 200 years ago? Right?" Stahl asks.

"Well, it isn't the mindset. It's what did the words mean to the people who ratified the Bill of Rights or who ratified the Constitution," Scalia says.

"As opposed to what people today think it means," Stahl asks.

"As opposed to what people today would like," Scalia says.

"But you do admit that values change? We do adapt. We move," Stahl asks.

"That's fine. And so do laws change. Because values change, legislatures abolish the death penalty, permit same-sex marriage if they want, abolish laws against homosexual conduct. That's how the change in a society occurs. Society doesn't change through a Constitution," Scalia argues.

Values do change, and that's what the law is for. Bedrock principles do not change, and that is what the Constitution is for. That seems so basic to any understanding of a constitutional republic's operation, but so many people are willing to blur the role of the Constitution and the law. If you really buy into the "living Constitution" argument, you're willing to let nine people tell you what the law of the land is. And they might do things you like or things you abhor, and you will live under the tyranny of the whim of the moment. 


Tue, 04/29/2008 - 1:44pm

I wondered how long Leo would take to defend Justice Pompous's performance Sunday night.

So far, he has been able to sell his concept of the Constitution to one other Justice on the court. One out of eight, in 27 years -he must really have some convincing arguments.

"If you really buy into the

Tue, 04/29/2008 - 2:40pm

Take a look at Scalia's view of the Equal Protection Clause in Bush v. Gore and tell me whether his interpretation is consistent with the Original Intent of its drafters.

Harl Delos
Tue, 04/29/2008 - 3:03pm

Hard to take a look at Scalia's view. He didn't write an opinion on that case; he simply concurred with Renquist.

A J Bogle
Wed, 04/30/2008 - 9:01am

"Maybe our forefathers expected their descendents to be able to resolve difficult issues by reasoned debate, as they had done, instead of letting them fester for decades because all we know how to do now is to scream at each other from different sides of deep philosohical chasms. Somewhere, James Madison is weeping."

Excellent comment CED.

Times and technologies change. If the constititution was as cut and dried as these so called constructionists say, then there would be no need for justices to INTERPRET the law - we could just go ahead and abolish the supreme court afterall.

Its funny how these right wingers are so against "activist" judges, the reality is they don't like "liberal" justices, and replace it with their own brand of activism - Terry Schiavvo anyone?

A J Bogle
Wed, 04/30/2008 - 9:28am

The tree that does not bend with the wind ultimately breaks

tim zank
Wed, 04/30/2008 - 10:54am

I love Scalia, if for no other reason, his common sense drives AJ & CED absolutely bonkers. Interpretations are tricky because they are opinions, and just like sphincters, everybody has one.

Wed, 04/30/2008 - 11:47am

Mr. Zank:

And apparently some of us, like you for instance, have two.

Scalia doesn't drive me bonkers. That would be giving him way too much credibility. What drives me bonkers is the attitude of many people, Scalia and yourself as examples, who stake out positions and then completely close their minds to any possibility that other positions might have some validity, too.

Of course, interpretations are tricky. So what? It is the duty of the courts to make interpretations of laws and the Constitution.

"Anyway, that

A J Bogle
Wed, 04/30/2008 - 12:05pm

What CED says.

Scalia doesn't bother me either, but as CED also says blind ideology of both stripes sure does