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the nature of American society and politics, the question started to arise more and more: “Isn’t this document a little outdated?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.”