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Why Justice Scalia doesn’t want to kill the Constitution

January 29, 2013 by NCC Staff


Associate Supreme Court Justice Antonin Scalia made headlines on Tuesday with statements that the Constitution is “dead.” It’s not the first time he’s made that statement, which is part of his core philosophy.

U.S. Supreme Court Justice Antonin Scalia. Photo by Stephen Masker.
U.S. Supreme Court Justice Antonin Scalia. Photo by Stephen Masker.

A quick search of Scalia’s recent public speeches shows that his “dead, dead, dead” statement is pretty much a stock part of his public appearances.

The brief items about Scalia’s recent Dallas appearance on political websites didn’t really put the statement in context, or they just assumed everyone knows what Scalia is talking about.

Scalia, as he eloquently says in his public speeches, believes in an “enduring” Constitution. Specifically, as an “originalist,” Scalia believes the Constitution should be interpreted only in the context of the Founding Father’s understanding of broad concepts, when they originally wrote the articles and Bill of Rights.

On the other side of the spectrum are believers in a “lLiving Constitution” that should be interpreted taking modern circumstances, recent court decisions, and other factors into account.

The exact quote from Scalia came after he remarked that young students visiting the Supreme Court talked about the Constitution as a “living document.”

“It’s not a living document. It’s dead, dead, dead,” Scalia said.

Last year, Scalia made the same statement in a talk at Princeton.

Princeton’s newspaper has a detailed explanation from Scalia from December in an appearance that coincided with his new book, “Reading Law.”

Scalia uses the same line—with an extra “dead” tossed in to make his point.

"I have classes of little kids who come to the court, and they recite very proudly what they've been taught, 'The Constitution is a living document.' It isn't a living document! It's dead. Dead, dead, dead!" Scalia said in December.

In an October speech in Wyoming, Scalia took to bashing living- Constitution supporters.

It’s not hard to find story after story about Scalia’s opinions on reading the Constitution, but the best one may be about his joint appearance before the Senate Jjudiciary Ccommittee in 2011.

Justice Scalia was joined by his ideological opponent, Justice Stephen Breyer, as they debated their two versions of the Constitution in front of the senators.

"I'm hoping that the 'living Constitution' will die," Scalia remarked at one point.

"It is a Cconstitution we are expounding,” Breyer countered.

Of course, after a little searching, we found reveals another joint appearance by Breyer and Scalia from 2005, where Scalia uses the same line.

“The issue is whether a judge can say the living Constitution has morphed, and so what used to be okay, is now not bad, is now bad. That’s the living Constitution I’m talking about and it’s the one that I wish would die,” he said.

Both Breyer and Scalia will have a busy spring and early summer to debate their theories behind closed doors.

The Supreme Court faces decisions on same-sex marriage, affirmative action, and the Voting Rights Act.

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