Wednesday, August 24, 2005

The "Living Constitution"

Apparently, there are no reasonable arguments in favor of it.

Update: Justice Scalia's remarks on the "living constitution" given in March.

A highlight:

Secondly, and this is the killer argument, I mean, it's the best debaters argument. They say in politics, you can't beat somebody with nobody, it's the same thing with principles of legal interpretation. If you don't believe in originalism, then you need some other principle of interpretation. Being a non-originalist is not enough. You see, I have my rules that confine me. I know what I'm looking for. When I find it, the original meaning of the Constitution, I am handcuffed. If I believe that the First Amendment meant when it was adopted that you are entitled to burn the American flag, I have to come out that way, even though I don't like to come out that way. When I find that the original meaning of the jury trial guarantee is that any additional time you spend in prison which depends upon a fact, must depend upon a fact found by a jury, once I find that's what the jury trial guarantee means, I am handcuffed. Though I'm a law and order type, I can not do all the mean conservative things I would like to do to this society. You got me.

Now, if you're not going to control your judges that way, what other criterion are you going to place before them? What is the criterion that governs the living constitutional judge? What can you possibly use, besides original meaning? Think about that. Natural law? We all agree on that, don't we? The philosophy of John Rawls? That's easy. There really is nothing else. You either tell your judges, "Look, this is a law, like all laws, give it the meaning it had when it was adopted." Or, you tell your judges, "Govern us. You tell us whether people under eighteen, who committed their crimes when they were under eighteen, should be executed. You tell us whether there ought to be an unlimited right to abortion or a partial right to abortion. You make these decisions for us."

I have put this question, you know I speak at law schools with some frequency just to make trouble, and I put this question to the faculty all the time, or incite the students to ask their living constitutional professors. "OK professor, you are not an originalist, what is your criterion?" There is none other.

Brilliant. Read or watch the whole thing.