Here is another perspective – for the benefit of those who are not lawyers – on the uproar over a controversial observation by Justice Scalia, made during a lecture he delivered at Southern Methodist University on January 28th in which he spoke of schoolchildren coming to visit the Supreme Court and annoying him by calling the Constitution a “living document.” (You don’t suppose they were coached, do you?) Here is the Justice’s now-infamous comment about the nature of the Constitution:
“It’s not a living document. It’s dead, dead, dead,” Justice Scalia said.
Original Meaning vs. Contemporary Meaning
Justice Scalia’s point – obvious to everyone, even though the Left could hardly wait to misconstrue it for propaganda purposes – was that the meaning of the Constitution was permanently fixed when it was adopted; same with each of the amendments. It may have taken a couple of centuries for the courts to have gotten around to perceiving and articulating that meaning as to every single provision, but the meaning was there all along, just waiting to be discerned. Those who have succeeded in indoctrinating even our schoolchildren with the “living document” theology (which means not just the Yale Law faculty but virtually the entire American Left) are, in Scalia’s view, peddling a defective theory: the theory that the Constitution can mean different things at different times and that the quest should not be for original meaning (or “original intent,” as some mistakenly say), but for contemporary meaning – what would most people understand these words to mean if they were uttered, for the first time, today rather than 200 years ago? A technical distinction? Hardly; it can make an enormous difference – for example, in Second- Amendment cases, it can mean the difference between a right to bear 18th-century muskets and a right to bear 21st-century assault rifles and rocket-launchers.
A Republic or a Democracy?
The real agenda of the ‘living document’ school is political – they are trying to substitute majority rule for our unique, hybrid model of government with its delicate set of constitutional checks and balances. They are trying to convert us from a republic, with democratic presidential and congressional elections but a stable constitutional foundation and a complex set of processes for writing and amending laws, into something the United States never was, that it was never intended to be: something much closer to a an actual democracy, in which the power of the dominant political party is far greater and the Constitution is no longer a stable foundation but is subject to de facto amendment at any time, based upon changing political views and values, by the executive branch (through Regulations and Executive Orders) or the judicial branch (through strained “interpretations” of constitutional language)..
The Difference Between a Constitution and a Law
Remember, the governmental structure established by our Constitution was unique and virtually unprecedented, and it had two essential elements:
- There are some legal rules (“laws”) that can be enacted or amended by our legislative branch – and there is a whole set of “checks and balances” to ensure that adopting or changing a law is not easy. First, our government is republican: we elect representatives and it is they, not the public, who make and amend our laws, and the lawmaking-process itself is laden with complexities (like filibusters, presidential veto-powers, procedural rules, etc.) Second, while we also have an executive branch and a judicial branch, those branches – theoretically – cannot make or amend laws; the executive branch is only supposed to administer and enforce laws, and the judicial branch is only supposed to interpret and apply the laws and our Constitution.
- There is a much smaller group of legal rules and principles (the Constitution) that are of so much greater importance that they are not supposed to be changeable by mere legislation – it takes either a constitutional convention (a procedure so daunting that it has never been used) or a 2/3 majority of each of the houses of the U.S. Congress plus approval by ¾ of the States (a procedure that has been successfully navigated from time to time but, obviously, is not easy).
The Hidden Agenda Behind the Controversy
The real point of the living document/judicial-realism/moral-relativism/judicial-activism school is, they want to be able to change our Constitution more readily and easily than is permissible under the literal terms of the Constitution. Effectively, they want to establish a substantially-different form of government, one much closer to the pure democracy that our Founders expressly rejected – and the risks of which we have seen, in vivid and distressing action, in the examples of the Arab Spring, where “democracy” has meant, effectively, unrestrainedly authoritarian, intolerant, and tyrannical rule.
Those who are intentionally misrepresenting Justice Scalia’s position are doing so because their ultimate ambition is to radically alter our unique, phenomenally successful, American form of government and change it into a form that gives the dominant political party far, far greater powers than were authorized by our Founding Fathers – with the President playing the role of the Roman Emperor Augustus with his sham Roman Senate. They want to turn the Constitution into something that can be easily altered – by executive-branch regulations or orders, by court decisions by the judicial branch, or by legislation that appears to violate constitutional boundaries but aims at judicial approval of the overstepping (for example, ObamaCare) – based upon contemporary values and policy preferences rather than Constitutional ones. They are, in essence, trying to achieve a “bloodless coup.” This is precisely the revolution-without-firing-a-shot that Saul Alinsky and his acolytes spent their lives plotting.