By Ryan Blodgett
Supreme Court Justice Antonin Scalia said the Constitution is “dead, dead, dead” in a speech Monday at Southern Methodist University. While it may sound grim coming from a curmudgeon like Scalia, it’s really not so bad or even new.
Scalia, a Harvard Law grad, isn’t saying that the government has failed to respect the Constitution. Scalia isn’t really speaking to the Constitution’s strength at all. Rather, he is talking about how judges should interpret the Constitution.
There are two schools of thought in this area. Some, who more often tend to lean liberal, believe that the text of the Constitution should be read to grow and evolve over time to fit modern life. This is why some judges think that the First Amendment provides a requirement for some online privacy protections and some gun-owners think the Second Amendment guarantees the right to own types of guns that didn’t exist in the 18th century.
Some other judges, who tend to be more conservative, believe that the Constitution is not a living document, meaning its text should be interpreted literally and within the context it was ratified. Those people call themselves “originalists.” These people might think that the Eighth Amendment prohibition on cruel and unusual punishment does not prohibit the death penalty by hanging or firing squad, since those things were not considered cruel and unusual in 1791 when the Bill of Rights was approved.
Although Scalia talks about the Constitution’s meaning being fixed and unchanging, he arguably doesn’t always vote on cases using that interpretation. For example, Scalia voted against upholding the constitutionality of the Affordable Care Act on Commerce Clause grounds even though the founding Congress, which included 20 of the framers, had no qualms passing a law that required people to purchase medical insurance. George Washington signed that bill into law.
There are a lot of other examples out there in which people argue that Justice Scalia ruled on a case the opposite way that an originalist would, and often the way that fits in with conservative views. Judge Richard Posner, a federal circuit-level judge and one of the most famous living judges not on the Supreme Court, criticized Scalia last year for this in an essay titled “The Incoherence of Antonin Scalia.” Quite the burn against someone who advocates for strict adherence to the letter of the law.