Justice Scalia: The Constitution is Dead

I know what Scalia means, but part of me couldn’t help but think there was a little irony in the Justice’s recent pronouncement: “[The Constiution’s] not a living document. It’s dead, dead, dead!” Speaking to a group at Southern Methodist University, Scalia was promoting what he considers a “strict constructionist” interpretation of the Constitution.

The debate on how to interpret the Constitution is older than the Constitution.

Most of the Founding Fathers were strict constructionists (as you would imagine… since they drafted the document. Of course they wanted it interpreted as it was written). Over time, as high technology and low morals altered the nature of American society and politics, the question started to arise more and more: “Isn’t this document a little outdated? But rather than re-write it, why not just interpret it freshly for our modern circumstances?” Which basically meant, “Why not just ignore the clear intent of the Founding Fathers and just draw from the Constitution whatever we want it to say…”

The question of how to interpret the Constitution is similar to the question of how to translate a book out of one language into another. There are really two basic approaches: metaphrase (concerned only with the literal words) or paraphrase (concerned with intent or overall effect). Both methods are problematic for one reason or another.  The problem with literal translations (which we can liken to strict constructionist models of interpretation) is that sometimes they render the original ridiculous or meaningless to a modern reader. Idioms and ideas may not mean the same thing today as they once did, or as they do in other languages. The problem with paraphrase is obvious: unless the translator is extremely careful, knowledgeable, and conscientious, he might twist the original meaning of a text in an attempt to make it accessible.

The Constitution has been abused by both strict constructionists and loose constructionists. Take, for example, the discussion of gun control and gun rights. On one hand, a strict constructionist could say that since the Founding Fathers were protecting the right to muskets, it is only the right to muskets that is currently protected. Not modern muskets (think AR-15 or M-16), mind you. Literal muskets. This is why Scalia, a purported strict constructionist, has not been the greatest champion of your gun rights. He doesn’t think the Constitution allows you to have whatever arms you can afford. Of course, loose constructionists make the Constitution say whatever is convenient. They pretend, in contradiction to all reason and evidence, that the Founding Fathers wanted to protect only their right to hunting rifles. Both approaches fall into error because Justices and Executors have a vested interest in reading the Constitution in their own way.

Probably the most insightful thing Scalia said was, “The judge who always likes the results he reaches is a bad judge.” This is like saying, “A translator should not correct the text he’s translating even if he doesn’t like how the original was written.” Unfortunately, that one’s also up for interpretation, and Scalia spoke more truly than he knew when he said the Constitution was “dead.” All we can hope for is that the Constitution writes in to the Supreme Court: “The reports of my death are greatly exaggerated.”



448 thoughts on “Justice Scalia: The Constitution is Dead

  1. Anyone remember Kent State? Some group torched some buildings, one of which was the ROTC building. The Governor activated the ONG. Campus radicals stirred the students into a frenzy and then left the scene. The students continued with their protests and someone tossed a few firecrackers into the mix. The ONG thought they were being shot at and we all know the result. I fear we are headed towards a similar confrontation, but on a much larger scale. We have an Administration stirring up the population getting us angry at each other. Eventually a firecracker is going to go off with catastrophic results. Just like at Kent State, the same radical activists are going to leave the scene and leave us to sort out the mess. The result will be just as Saul, Bill, George et al want, an America crippled beyond recognition.
    We all have to step back, cool off and look to see what the real issues are. Which are the divisive nature of our current leadership and media. The only institution I'm aware of capable of cooling the fires of passion we are all experiencing is Church and the belief in a Loving God as we each understand it.

  2. You get paid to fix it. So fix it.

  3. Stupid use of words. The Constitution is alive when infused with the spirit of the American Revolution, the Declaration of Independence. That's where the founders pronounced that our rights come from God! The Constitution is only as good as the people sworn to uphold it. Scalia is guilty of giving aid and comfort to the enemy.

  4. Biblical scholars solved this issue decades ago: look up hermaneutics. There IS a right way to interpret ALL ancient texts, accurately and rightly.


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  6. we the people,who are the real government,will mr scumscalia,its dead to you traitor,but to all we the people by me,it has never been more alive,you stick your black robe,we interpret nothing we adhere to it,we the people are appalled,and your a judge,my god,they must have lowered the standards,to just above a mcdonalds employment.god bless we the people,and the constitituion.

  7. Anthony Scalia Is Not Fit To Wear The Robe Of An Supreme Court Justice Or Sit At The Supreme Court Bench For Making Such An Ludicrous And Outrageous Claim About The Law Of The Land And Should Be Impeached As An Traitor To ThIs Country And It's People For His Blatant Refusal To Protect And defend The U.S. Constitution As Well As His Violation Of His Sacred Oath Of Office Upon His Becoming An Justice. Every One Of These Criminals That Have Seized Control Of Our Government Should Be Removed From Office By Force And Tried For Treason And Then They All should Be Quickly Executed Then And Only Then We The People Will Be Able To Reclaim What Is Rightfully Ours. Sic Semper Tyranis You Bastards! Should Be Our Battle Cry.

  8. Ouch! Can we try to be less vitriolic in the debate? It seems to me Scalia's remark about the Constitution being dead merely reflects his opposition to the liberal idea of a "living Constitution" that can be reinterpreted to mean whatever they choose to read into it. Liberals have already done enormous damage to our society and our system of government through the insidious redefinition of words and whole clauses. If the Founders could see what has become of their bold experiment they would, at the very least, be sorely disappointed that their concern about expanding government and shrinking individual liberty has proven so prophetic. On the subject of the "dead" Constitution, however, I disagree vehemently with any interpretation that limits the Second Amendment to the right to bear muskets. The Founders carefully avoided identifying specific arms that were permitted. Liberals who try to define firearms they regard as appropriate to hunting or self defense are just as far off the mark. The founders had just been through a revolution. The clear intent of the Second Amendment was to insure that Americans would always have the means to resist tyranny. Though they did their best to restrain the power of government through the Constitution, the Founders recognized that even the American government could one day become as oppressive as the British monarchy from which they had just freed themselves. If we respect the intent of the Second Amendment then private ownership of almost any weapon is justifiable.

  9. The Bible is not a living document either. But it's not dead.


  11. Well if its dead, why do we need the supreme court? If they wont honor any guide lines, then why do we have them sitting in the high chair? Which ever party has more judges would win every time.