Today is Constitution Day. Many posts have discussed the Constitution.
Justice Antonin Scalia, October 18, 1996:
The argument is usually made in anthropomorphic terms, much like commentary on the part of people who talk about the stock market as resting for a new assault at the 4000 level. The modernists do the same thing with the Constitution. The argument is as follows:
"The Constitution is meant for a living society. If it could not grow and evolve with the society, it would become brittle and snap. You have to provide the flexibility."
This is a very plausible argument. It sounds wonderful, until you start to think, "Now, wait a minute. What is the real motive of these people who want to chuck away the old, original constitution? Is it really flexibility that they're looking for?"
What was the situation before Roe vs. Wade (1973)? If you wanted a right to an abortion, you had to create that right the way a constitutional democratic society creates most rights. You had to pass a law providing for and protecting that right. If you didn't want it, you had to pass a law against it.
The same was true of capital punishment. Existing law authorized capital punishment. If you wanted to abolish it, you needed to get a change in the law.
Regarding capital punishment, I have sat with three colleagues on the Supreme Court who think that capital punishment is unconstitutional, even though the Constitution mentions capital punishment. The due process clause--a clause you're all familiar with-- provides: "No person shall be deprived of life, liberty or property without due process of law..." What do you think the drafters of the clause were talking about? They were talking about the death penalty. And elsewhere in the Constitution, it says you shall not be sentenced for a capital crime without a grand jury indictment. What do think the drafters were talking about? They were talking about the death penalty, clearly approved in the text of the Constitution.
For the constitutional evolutionist, or modernist, it doesn't matter what the text of the Constitution says. For the modernist, everyday is a new day. And so, the death penalty, which might have been constitutional in the past, may very well be unconstitutional today. Now does that produce flexibility? Under the original disposition, if you wanted to have the death penalty, you enacted a law authorizing it. If you didn't want it, you repealed the law authorizing it. That's flexibility.
So, these people who go around talking about the need for growing and bending are uttering nonsense. What these people want is to impose a view of things on the whole soiety from coast to coast, and it is most quickly and most effectively done through the Constitution. And the easiest and quickest way to get something into the Constitution is to get it done via judicial interpretation. Rather than go the slow, difficult, and trouble- some route of getting a constitutional amendment drafted, formally proposed and rati- fied, persuade the highest court in the land to interpret the Constitution so broadly and loosely as to enable it read the desired policy into the Constitution
