Posted by Frank James at 8:42 am CST
Martin Luther King Jr. Day 2006 isn’t that far in the rear-view mirror. So I think I still have time to raise a question triggered by something President Bush said in his King Day speech at the Kennedy Center here in Washington on Monday.
The president called the Constitution a “living document.”
But is that view truly compatible with another he has stated, that his ideal federal judge is a strict constructionist? Maybe the president needs to discuss the matter with one of his Supreme Court favorites, Justice Antonin Scalia. I think Scalia’s answer would be “no.”In a speech Scalia gave last year at the Woodrow Wilson International Center for Scholars here in Washington, the justice minced few words. “The worst thing about the living Constitution is that it will destroy the Constitution,” he said.
Scalia’s entire speech is well worth reading. It has the benefit of being quite humorous and thought provoking to someone with an open mind. It could make strict constructionists out of a lot of people.
Here are a few choice passages.
“Secondly, and this is the killer argument — I mean, it’s the best debaters argument — they say in politics you can’t beat somebody with nobody, it’s the same thing with principles of legal interpretation. If you don’t believe in originalism, then you need some other principle of interpretation. Being a non-originalist is not enough. You see, I have my rules that confine me. I know what I’m looking for. When I find it — the original meaning of the Constitution — I am handcuffed. If I believe that the First Amendment meant when it was adopted that you are entitled to burn the American flag, I have to come out that way even though I don’t like to come out that way. When I find that the original meaning of the jury trial guarantee is that any additional time you spend in prison which depends upon a fact must depend upon a fact found by a jury — once I find that’s what the jury trial guarantee means, I am handcuffed. Though I’m a law-and-order type, I cannot do all the mean conservative things I would like to do to this society. You got me.
“Now, if you’re not going to control your judges that way, what other criterion are you going to place before them? What is the criterion that governs the Living Constitutional judge? What can you possibly use, besides original meaning? Think about that. Natural law? We all agree on that, don’t we? The philosophy of John Rawls? That’s easy. There really is nothing else. You either tell your judges, ‘Look, this is a law, like all laws, give it the meaning it had when it was adopted.’ Or, you tell your judges, ‘Govern us. You tell us whether people under 18, who committed their crimes when they were under 18, should be executed. You tell us whether there ought to be an unlimited right to abortion or a partial right to abortion. You make these decisions for us.’ I have put this question — you know I speak at law schools with some frequency just to make trouble — and I put this question to the faculty all the time, or incite the students to ask their Living Constitutional professors: ‘Okay professor, you are not an originalist, what is your criterion?’ There is none other.”
Maybe Scalia’s right, maybe he’s wrong. But I think I can say one thing for sure. He’s not likely to second the president’s “living document” notion.
Matter of fact, he would take issue with the term strict constructionist too, a term Bush has used to describe judges like Scalia who try and divine the original meaning of the Constitution’s language.
“I’m not a ‘strict constructionist…’ ” he said. “I don’t like the term ‘strict construction.’ I do not think the Constitution, or any text should be interpreted either strictly or sloppily; it should be interpreted reasonably.”
