Scalia scoffed for claiming Constitution is ‘dead’ document

January 30, 2013

Supreme Court Justice Antonin Scalia is drawing fire from legal colleagues for his characterization of the U.S. Constitution as a “dead” document — that is, judges should not take it upon themselves to interpret its clauses via modern meanings.

“It’s not a living document,” Mr. Scalia said Monday, during a Southern Methodist University appearance, according to reports in the Dallas Morning News. “It’s dead, dead, dead.”

Mr. Scalia, a Ronald Reagan-appointee, has always maintained an originalism view of the Constitution — one that holds fast to the need to interpret the text as the Founding Fathers intended at the time.

“I deny the premise that law has nothing to do with historical inquiry,” he said, during an April 2010 appearance at the University of Virginia School of Law, according to postings on the university’s website. “Historical inquiry has nothing to do with the law only if the original meaning is irrelevant.”

On Tuesday, a day after Mr. Scalia again emphasized that view, legal scholars scoffed.

“I think that it is a bit disingenuous in that he, Scalia, understands that his personal views play an important role in shaping and informing,” yet also says judges’ beliefs shouldn’t be tainted by modern-day events and culture, said Yale Law School professor Peter Schuck, in a story from Politico.

3 Comments - what are your thoughts?

  • Liam says:

    Associate Justice Scalia is right on target and Schuck is the disineguous one. The Founders, whose historical understanding far exceed Schuck’s, wrote a reasonably rigid governing framework for The Nation, understanding that modification over time would be necessary… thus a defined Amendment process. What The Founders feared was over-reach by any of the three Govt. branches to amass power and limit individual and State rights/freedoms… thus the Bill of Rights, esp. the 9th and 10th Amendments. Were The Founders alive today to see what judicial activism and executive arrogance have done to their Nation, they’d be in the vanguard pursuing a new Declaration of Independence!

  • Jim Macklin says:

    Obviously, the Constitution is a legally binding document, with a known, historical meaning.

    It isn’t dead, it is fixed. The choice of words, “dead” means it is not open to 300 million interpretations. Neither is it allowed to be interpreted using old words with new meanings.

    It means what is says and how it was understood 200 years ago.

  • CTH says:

    Peter Schuck and other socialist ivy league law school professors are a large part of the cause of the destruction of our legal system.

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