Thursday, April 28, 2016

The Flexibility of the Dead Constitution

The late Justice Antonin Scalia, in his 1997 lecture on interpreting the Constitution:
“I ask you to consider, do the people who want to bring us a Living Constitution want to bring us flexibility? My Constitution is flexible. My Constitution, which is; I will accept the condemnation, which is a minimalist Constitution. It means what it meant when it was written. But it is a flexible Constitution. In my Constitution you want the death penalty, pass a law. You don’t want the death penalty, pass a law the other way. How more flexible could you be? …

“And those people who would insert one after another new right into the document are not eager to bring us flexibility. They are eager to have us do it their way from Coast to Coast without the possibility of democratic change….

“That an intelligent society should debate these issues, even these important issues. Persuade one another and govern themselves. That was what 1789 was about. The Bill of Rights was a very small exception. Just a few things we will take out of this democratic process and guarantee absolutely, unless you can amend The Constitution. A very few things.

“Every time you add something to that list you diminish democracy. Whether it’s something added on behalf of liberals or on behalf of conservatives….

“Come along with me and admire the Dead Constitution. I have to get a new term for it. That one; maybe the Enduring Constitution. That’s a little better. Packaging is everything.

“It is less cosmic. It does not do all those wonderful things that maybe you think a Constitution should do. But it happens to be the way that a democracy ought to govern itself.”
Great stuff.  Classic Scalia.  Just classic.

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