I suppose that I am one of those idiots who believes that as smart as the Framers were they could not foresee every situation. Or maybe I am just confused because the Framers established a system for amending the Constitution.PONCE, Puerto Rico Feb 14, 2006 (AP)— People who believe the Constitution would break if it didn't change with society are "idiots," U.S. Supreme Court Justice Antonin Scalia says.
In a speech Monday sponsored by the conservative Federalist Society, Scalia defended his long-held belief in sticking to the plain text of the Constitution "as it was originally written and intended."
"Scalia does have a philosophy, it's called originalism," he said. "That's what prevents him from doing the things he would like to do," he told more than 100 politicians and lawyers from this U.S. island territory.
According to his judicial philosophy, he said, there can be no room for personal, political or religious beliefs.
Scalia criticized those who believe in what he called the "living Constitution."
"That's the argument of flexibility and it goes something like this: The Constitution is over 200 years old and societies change. It has to change with society, like a living organism, or it will become brittle and break."
"But you would have to be an idiot to believe that," Scalia said. "The Constitution is not a living organism, it is a legal document. It says something and doesn't say other things."
Call me crazy but to me that is indicative of an intent and understanding on the part of the Framers that there might be legitimate reasons to amend and adjust, such as the 14th amendment.
Just one more reason why I hope he takes his tired POV and retires.
15 comments:
He, of course, should wait until Hillary has taken the oath of office.
The constitution for some exists outside of the legal document.
The constitution exists and the paper document is simply and expression of it or so I have been told by My poli sci buddies.
Unfortunately positivists like Scalia, don't get this concept.
As smart as the man may be his comments show his narrow mindedness that now rules the court.
I think you're all misunderstanding his point. His point is that the Constitution is set up a certain way, and was not meant to be a 'living document' as so many say. The example of the 14th Amendment is a perfect one: The Constitution doesn't constantly change, or it's pretty much worthless - it would just move on the whims of the people on the bench, and their personal interpretations of society. Instead, we have a system to change and amend this already written document as is necessary, through the writing of amendments. If society has truly shifted, gathering a 2/3 (3/4?) majority should not be a big deal. If it's a temporary or localized shift, it should be much more difficult.
The consitution, much like halacha (couldn't resist throwing that in there) may not change word for word, but without a doubt our world does change, leading us to new (and sometimes better) insights as to what we've been looking at for hundreds of years.
If it's not "living" than it most certainly is one of those hidden eye pictures - every time you change your focus, you see something there that wasn't there before.
"Scalia does have a philosophy, it's called originalism"
Is this how he usually talks? Oh, boy...
It's the meaning that doesn't change. The Constitution, in its original meaning, must be applied to new situations. It's really not that difficult.
Speaking as a self-described idiot, I can't even complain about Scalia's language. How many of us have never used such mild language about our opponents? "But he's a judge." Yes, and he was speaking out of court.
GT,
Scalia doesn't say much.
Z,
Dream big but be real.
Bill,
Makes sense to me.
Misanthrope,
Good to see you again, we missed you here. His comments bother me greatly.
Ezzie,
Are the amendments part of the Constitution?
Robbie,
I suspect that you and I are in agreement about this issue.
Snoopy,
Sometimes he uses real impressive words like confabulation and confluence too.
Attila,
It is not proper for a judge to speak that way. Just my IMO.
Are the amendments part of the Constitution?
Yes. :) [In a sense]
I realise as a Canadian my POV does not really matter but for what it is worth here it is.
Yes Jack your right Amendments are part of the constitution, that is how it can be defined as a "living document."
This is defined in Article V
"Article. V.
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States,
shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress;
If the constitution was not meant to be a living document then why would the framers have included such a mechanism for change.
And as for the judicial system's right to interpret the document.
Article III puts judicial power in the hands of the courts. The Supreme Court of the United States is the final court of appeal from the lower state and federal courts. The courts have the power of judicial review (thus they interpret the Constitution) Although this was not explicitly mentioned in the Constitution, the principle was established by Chief Justice John Marshall in the 1803 Supreme Court case Marbury v. Madison.
Supreme Court Justice Antonin Scalia in my opinion seems to be attempting to negate the framers intent to make the constitution applicable to an evolving society.
So calling him an originalist may be a misnomer.
In the sense that it can be amended and have parts repealed it is a living document, but the people who most often refer to it as such pour a completely different meaning into the phrase. They want to reinterpret what is already written in the light of expediency rather that as it was intended. The amendment process was meant to be slow so that a well reasoned national debate could occur before the document that defines the limits of our government and guarantees our liberties can be changed.
Ezzie,
So you agree with myself and Bill that the amendments are part of the Constitution and by their very nature prove that the document is a living doc.
Xyba,
I don't disagree that the amendment process is supposed to be a process, but it doesn't change the reality that the document is alive.
It was designed and constructed so that it could be adjusted as needed.
Xyba - If, as you say, "They want to reinterpret what is already written in the light of expediency rather that as it was intended," and they are Judges of the court, then they have this right. As I mentioned Article III gives The courts power of judicial review. Only an amendment to the constitution can take that away.
The Conservative party of Canada has the same beef with our judicial system for much the same reason.
In saying there is only one way to interpret the constitution then we limit judicial review if not creating the path to abolishing it.
In removing the concept of Judicial review from government then we lose another check on government.
What makes your system and ours successful is their ability to prevent abuse of power. If a party is to interpret the constitution in any manner they like, the tendency to interpret along party lines is too great, and centralizing power in one party historically had horrific results. Without a check on this, such as judicial review, you are one step closer to an oligarchy rather than a democracy.
This does not mean the document as written is being protected by the court, and therefore not a living document, on the contrary it begins the process leading to an amendment to address any misinterpretation by the court which the government, as elected by the people, sees as inconsistent with the constitution that being what currently constitutes the nation.
A check such as this works many ways and protects the people from abuse of power by any part of government, the courts or the congress or even the President.
The first thing Hitler did was to remove checks on his power with the enabling act he removed the constitutions authority over the Reich and placing power into the hands of his cabinet (one check removed) In January 1934 the Reichsrat, the upper house of the parliament, was abolished. (another check removed) In May 1933, the Nazis ordered the abolition of the independent labour unions(another check). During the spring of 1933, the Nazis moved to eliminate opposition political parties. In July, the Nazi Party became the only legal party.(yet another check)Following the death of President Hindenburg, Hitler abolished the office of president and assumed the president's powers.(no more checks)
This is not meant as a comparison but to show the importance of a system that has checks on the abuse of power, as well as the danger of allowing these checks to be removed.
Sorry Jack, just to let you know, I highjacked part of this thread on my blog.
Hey Bill,
No problem.
Post a Comment