"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."I find these comments positively quixotic. I'm no legal scholar, but the argument for "strict construtionism" is generally expressed by people who don't like legalized abortion or homosexuality and want the constitution, which they perceive to be a rigid document, to revert to the status quo before the interpretation of "privacy rights." Additionally, I've never heard anyone argue that the constitution might "break" but that the notion of it being flexible does help it maintain its relevancy in modern times, be it 2006 or 2106.
"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."
Proponents of the living constitution want matters to be decided "not by the people, but by the justices of the Supreme Court."
"They are not looking for legal flexibility, they are looking for rigidity, whether it's the right to abortion or the right to homosexual activity, they want that right to be embedded from coast to coast and to be unchangeable," he said.
Personally, I think the mystery of the "framer's intent" boils down to this-- if they wanted the constitution to be interpreted in a vacuum then why design it to be amended? Maybe it's an overly simplistic interpretation, but it just seems clear to me that they recognized that society changes and designed the constitution with that in mind. For pete's sake, they had already seen how much times can radically change in their own lives-- they were establishing a new country!
So, yes, I embrace the "idiotic" view that the framers were progressive intellectuals who wouldn't have wanted the constitution to hold future society back from expanding basic freedoms and full equality that they, as products of their time, could never have imagined. This interpretation extends far beyond today's controverisal issues of homosexuality and abortion, it includes women's rights and the equality of African-Americans as well.
Quick question-- if all people who have different legal philosophies than Scalia are "idiots" what are Supreme Court justices who talk about themselves in third person? From the same speech.
"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.World's Second Biggest Asshole? Scalia just might be.
By the way, this speech was made before a Federalist Society chapter in Puerto Rico. I wonder who paid for that trip?
Tip o' the hat to David of NCADP blog for sending me the story.