Last week U.S. Supreme Court Justice Antonin Scalia during a book tour plugging his new book “Reading Law” spoke to an audience at PrincetonUniversity. While he took some well deserved flack for his stance on gay rights, there was a different exchange which I found more problematic.
Specifically he was asked about approaching constitutional interpretation as though the United States Constitution were a "living document."
Scalia argued that the Constitution is not a living document; it is “dead, dead, dead, dead.” (He also called proponents of the “living constitution” approach “idiots,” but we won’t rise to that bait. Suffice it to say his increasingly strident protestations from extreme right are sounding more and more like that doddering old fool on the park bench shouting at the pigeons. Okay, I suppose I did rise to that bait, forgive me.)
Scalia's comment raises some of the flaws in the approach to constitutional interpretation known as “strict constructionism.”
Scalia opines that the constitution can only be interpreted in terms of the context and meaning of its words during the time period in which it was crafted. It is for this reason, for example, that his dissent in NationalFederation v. Sebelius (the case upholding the Patient Protection and Affordable Care Act, a/k/a “Obamacare” as a constitutional exercise of Congress' taxing authority) he relies upon eighteenth century dictionaries in discerning the intention of the drafters of the constitution. (Read in his dissent, for instance, where he interprets the words “to regulate” in the context of dictionaries published in 1775, 1777, 1785 and 1828.)
There are at least three ways in which this analysis is intellectually dishonest. First, this approach assumes that words used in the composition of the constitution were themselves capable of clear interpretation purely in the context of that time. This was not the case. Many of the very individuals who participated in the drafting of the constitution became Federal legislators and the record of those first congresses reflect ongoing debate about what the constitution meant even within the context of its own times. The fact that Scalia himself can identify multiple definitions underscores this point, rather than undermining it.
No later than 1819, in McCulloch v. Maryland, 17 U.S. 316 (1819), Chief Justice John Marshall wrote that the constitution is “intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs.”
Secondly, the 18th century as a context is itself “dead, dead, dead, dead.” Documents cannot be interpreted “in context” once that very context has vanished forever. Any view of that context now is necessarily historical, seen through the prism of the current day and age.
The founding fathers, for instance, several of whom were among the great scientific minds of their generation (Benjamin Franklin comes to mind), were aware that the future would bring progress, technological and otherwise, and that their document would be one which would require adaptation to future ages. To suggest that any interpretation of the document compelled the interpreter to remain rooted to the sensibilities and viewpoint of the late eighteenth century is simply intellectually dishonest. Seriously, when is the last time you had snuff? Danced a minuet? Burned a witch at the stake? (Okay, maybe that last one is overstating the case).
The Pentateuch and the Gospels were written thousands of years ago and yet nobody attempts to interpret these canons in strict terms of the “parlance” of 50 A.D., or 250 B.C.E. and so forth. For starters, there just aren’t that many people around who speak the Aramaic variant of the day. No, these ancient documents are always placed in contemporary context when interpreted. Their readers seek guidance from these sources in contemporary settings. Similarly, the enjoyment of Shakespeare is not in focusing on the meaning of works in Elizabethan England, but rather what lessons do we glean from Hamlet, Macbeth, King Lear in the context of our current times?
Reading canonical works strictly in the context of their creation is a noble academic pursuit --- for historians --- doing so is not, however, the proper analysis for meaningful contemporary thought or usage.
Finally, “strict constructionism” has historically been the justification behind those who rail against an “activist court.” This is the easiest argument to defeat. Historically, whether conservative leaning or liberal leaning courts are “activist” is always in the eye of the beholder. Which court would have been more activist, one that endorsed the election of George W. Bush or one that validated the election of Al Gore?
In our view, at least, it is not the constitution that is “dead, dead, dead, dead,” it is Scalia's analysis that is.