Sunday, February 26, 2006

He’s ba-a-a-ck. Not that he ever really goes away. After all, he has life tenure. This time the Hon. Antonin Scalia was calling those of us who think of the Constitution of the United States as a living document “idiots.”

No, this wasn’t Ann Coulter doing her stand-up routine, but rather an associate justice of the U.S. Supreme Court.

Welcome to civil discourse, 21st century-style.

A decent respect for those who hold to a different philosophy of law, or of anything else, now seems to have gone the way of powdered wigs, dress swords and chivalry in general.

This time Justice Scalia was caught talking out of school, or rather his courtroom, at a meeting of the Federalist Society down in Puerto Rico — although his formal opinions are scarcely more temperate. His subject on this occasion: The idea of a living Constitution and why it’s wrong, wrong, wrong.

Mr. Justice Scalia summed up the idea before dismissing it as idiotic. “That’s the argument of flexibility,” he explained, “and it goes something like this: The Constitution is over 200 years old and societies change. It has to change with society, like a living organism, or it will become brittle and break.”

Which is a fair enough summation of what those of us who speak of a living Constitution mean by the phrase. You can see why the judge did so well in law school. Alas, his wind-up produces only a beanball:

“But you would have to be an idiot to believe that. The Constitution is not a living organism, it is a legal document. It says something and doesn’t say other things.”

The justice makes the U.S. Constitution sound like a real estate lease or a last will and testament. Even some of those may be subject to different interpretations over the years.

Isn’t it the genius of the Constitution that its principles are broad enough to meet the demands of changing times? Isn’t that the great virtue of any basic law — that it is broad enough to grow in response to different conditions? Isn’t that why a country’s constitution is sometimes called its organic law?

As with a living organism, if law does not adapt, it dies. It becomes a dead letter — instead of a living thing. The logical opposite of a living Constitution is a dead one.

Surely the distinguished justice cannot believe the Constitution of the United States means the same thing when applied to a legal question in 2006 as it did in 1787, or 1861, or 1954 or… well, pick your year.

Quite aside from how the Constitution has been changed by explicit amendment, many of its provisions have been changed and changed back again by judicial interpretation.

See the changing history of constitutional concepts like the general welfare, the supreme law of the land, the necessary and proper powers of government, due process, ex post facto laws, the right of contract, even habeas corpus. Pick your favorite. How they are applied depends on which court applies them in response to which changing circumstance.

In contrast, Justice Scalia calls his philosophy textualism — the belief that the Constitution means… just what it says. As if the very meaning of words does not change over the centuries. Even some of the Constitution’s authors, like Andrew Hamilton and James Madison, couldn’t agree on its meaning.

Those who refer to the Borkians/Scalians as originalists do the original Founders an injustice; that generation framed a Constitution meant to anticipate change, not stifle it. They weren’t laying down the law for the future; they understood the future would make its own law. They sought to build a framework within which change could safely take place, a flexible framework — not a straitjacket.

The Constitution of the United States is a masterwork of the plastic art of jurisprudence, subject to different interpretations at different times. It is as much sail as anchor. That is why it makes the literal-minded uneasy. They are not so much conservatives as radicals, even absolutists. The elasticity of the Constitution’s language, which some consider a great virtue, only alarms them. They’re less originalists than literalists.

Instead of the Constitution setting forth a grand vision, one that can be applied to changing times and circumstances, they would prefer to think of it as only a legal document that says something and doesn’t say other things.

How simple. And simplistic. Like calling those with whom one disagrees idiots.

Paul Greenberg is a nationally syndicated columnist.

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