I can see your point but that's not what she said
Did Scalia think the Constitution was a "living document"
Do originalists or "strict constructionis" think that it is?
Hi, Straw,
I think that Antonin Scalia's reference to the "Dead Constitution" is an unfortunate phrase, though I have been seeing some commentators instead referring to his idea as the "Enduring Constitution." Clearly, the Constitution itself is not a static document, but grows over time via added amendments. In this area, I am no Constitutional scholar, but I have taught American jurisprudence (and presented/published some work in this area) to be familiar with debates between the so-called "Living Constitution," which was championed by Supreme Court Justice Stephen Breyer, and the so-called "Dead Constitution," which, again, was championed most forcefully by Scalia.
Moreover, I am aware of conflicts over Supreme Court nominations dealing with whether judges would be (i) originalists or (ii) legislators from the bench (i.e., reading into the law political agendas). In other words, between, as put by Justice Earl Warren, reading a statute according to the stricter "letter" or the looser "spirit" of the law.
However, the thorny issue is not the life or death of the document itself, but rather is the complicated problem of statutory interpretation. Scalia himself claimed he was a textualist first and originalist second. "Textualism" claims to be an intrinsic method that looks into the language of law as "construed according to its plain meaning." By contrast, "Intentionalism" looks extrinsically to factors not just contained in the exact words of a statute, but rather to considering "legislative history to clarify an ambiguous text."
Making matters even more complicated is that both methods are not so fixed. For example, some commentators claim that "neither textualism nor intentionalism is rigidly mechanistic or limited to the action of the enacting Congress," with "textualists," for example, sometimes looking to broader legal contexts and "intentionalists" at times venturing beyond the enacting Congress's particular intent to preserve a statute's purposes." What this means is that neither approach is rigid, textualist sometimes look to extrinsic factors, while intentionalists look to intrinsic factors.
In addition, complicating even more what is already complicated, there are other interpretive methods such as "pragmatism," [1]
"purposivism," [2] and "practical reasoning" [3], about which I discern the problem of trying to settle on any one method to statutory interpretation.
As you can see, setting up simple polarities between the "living" and "dead" Constitution and "originalism" and "pragmatism" only scratches the surface. I have a few concerns with Scalia's jurisprudential philosophy, but I think that he's right about not reading anything into the law that is not already there. However, make no mistake, ACB is the real deal and playing in the big leagues of jurisprudence.
Stay well,
Kahn
1. Pragmatism takes into account a changing society, and "a pragmatist judge always tries to do the best he can for the present and the future, unchecked by any felt duty to secure consistency in principle with what other officials have done in the past." See Richard A. Posner, "Pragmatic Adjudication," 18 Cardozo Law Review 1 (1996), p.4.
2. Purposivism considers a law's intended purpose or goal at the time of its passing by keeping two things in mind, "first what is the natural meaning of the words used in the statute and second what are the purpose or object and reason of making a statute." See A.B. Kafaltiya, Interpretation of Statutes (New Delhi: Universal law Publishing, 2008), p. 37.
3. "By 'practical reason,' we mean an approach that eschews objectivist theories in favor of a mixture of inductive and deductive reasoning (similar to the practice of the common law), seeking contextual justification for the best legal answer among the potential alternatives." See William N. Eskridge, Jr. and Philip P. Frickey, "Statutory Interpretation as Practical Reasoning," 42 Stanford Law Review 321 (1989-90), p. 322, fn. 3.
