Continued from page 1

“I’m hoping the living Constitution will die,” Justice Scalia said.

But Justice Breyer said the words of the Constitution don’t explain themselves and don’t always “work” for a modern country.

“It calls for human judgment. As soon as human judgment enters the picture, fallibility is possible,” he said.

He criticized the originalists for being too locked in to ancient concepts.

“The opposite danger is interpreting those words in a way that they will no longer work for a country of 308 million Americans who are living in the 21st century — work in the way those framers would have wanted them to work had they been able to understand our society,” he said.

The justices took on the ever-thorny issue of televising their proceedings, with Sen. Richard Blumenthal, Connecticut Democrat, asking them why they don’t.

The justices said they feared the effects of boiling down their in-depth arguments to brief snippets that would appear on the news.

“Do you really think the process in the Senate has been improved since the proceedings have been televised?” Justice Scalia asked.

Mr. Blumenthal shot back that though there have been mixed reviews, the openness has been worth it.

“I do think that it has been a step in the right direction, providing more transparency and disclosure and understanding on the part of the public,” he said.

Wednesday’s hearing was televised by C-SPAN.

Justice Scalia said the gridlock that draws protests from citizens and pundits alike is actually just what the government’s founders intended and said it’s evidence that divided government is working to preserve the few against the tyranny of the majority.

“Learn to love the separation of powers, which means learning to love the gridlock, which the framers believed would be the main protection of minorities,” he said. “Americans should appreciate that, and they should learn to love the gridlock. It’s there for a reason.”