Supreme Court Justice Antonin Scalia told a crowd at Southern Methodist University Monday night that the Constitution is “not a living document” and that it’s “dead, dead, dead,” MSNBC reported.
Scalia was at SMU to participate in a lecture with law professor Bryan Garner, with whom he has written two books. A staunch “textualist,” Scalia said he would hear children visiting the Supreme Court call the Constitution a “living document,” but he believes it is “dead.”
That statement is somewhat ironic coming from Scalia, one of the most conservative members of the court and one of the justices who ruled in favor of the Citizens United decision. No literal, “dead” interpretation of the Constitution would grant corporations the same rights as individual American citizens.
The founding fathers obviously believed the opposite of Scalia in terms of the way to interpret the Constitution. Both Thomas Jefferson and James Madison viewed is as a living document, as Addicting Info pointed out.
Jefferson said in 1816,
“[I know], that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors.
Madison’s opinion mirrored Jefferson’s. He said,
I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that is not the guide in expounding it, there may be no security for a consistent and stable, more than for a faithful exercise of its powers. If the meaning of the text be sought in the changeable meaning of the words composing it, it is evident that the shape and attributes of the Government must partake of the changes to which the words and phrases of all living languages are constantly subject. What a metamorphosis would be produced in the code of law if all its ancient phraseology were to be taken in its modern sense.
The founding fathers clearly never meant for the Constitution to stay rigid and unchanging. How else could the Bill of Rights exists? Those 10 Amendments were added more than two years after the original text of the Constitution was ratified. It didn’t even make it three years before changes were required.
Scalia should understand that there is no way the Constitution is “dead.” He simply uses that argument when it serves his own conservative interests. When it doesn’t, as was the case with Citizens United, that ideology goes right out the window.