Scalia, the lightning-rod for liberals, believes interpreting the Constitution should be based on what its framers had in mind and not the idea of a “living Constitution” that changes as needed to fit new circumstances and societal views. To the contrary, his approach allows the people, not judges, to govern and make laws. Thus, originalism ensures a more flexible legal system, Scalia said during a symposium of the State Bar of Georgia.
“The Constitution is not a living organism,” he said. “It’s a legal document, and it says what it says and doesn’t say what it doesn’t say.” Supporters of a “living Constitution” are trying to create uniformity, he said. “Flexibility is not what they’re after,” he said. “They’re after rigidity.” Further, the living Constitution concept does not result in more freedom, he said, citing the example of sentencing systems that permitted sentences to be based on factors that prosecutors did not have to prove to a jury — “an outrageous violation of the right to trial by jury” — cured by the court in a close vote.“That’s one of the consequences that can flow from the living Constitution — elimination of prior rights,” he said.
“Originalism is not perfect,” he said, but most issues “are not hard calls.” The “easy” calls, he said, include abortion, which is not protected by the Constitution in his view, and the death penalty, which he believes is not prohibited constitutionally.
Scalia has been described as possibly “the most polarizing figure in all of American law” by Harvard law professor Cass R. Sunstein, who nevertheless concedes that the Supreme Court’s longest-serving justice (appointed by Reagan in 1986) “seeks to increase predictability and to reduce the risks associated with judicial discretion.” Scalia “favors general rules, not case-by-case judgments,” Sunstein wrote in a July 2013 Bloomberg piece. “In his view, such rules simplify life for ordinary people and the legal system as a whole. They also reduce the danger that political preferences will end up dominating judicial decisions.”
It gets back to Scalia’s belief that laws have to be interpreted in accordance with the meaning their words had when they were enacted, and that the words in the Constitution mean what they meant at the time they were written and ratified. It is “a question of history, not morality,” in Scalia’s originalism.
Loosely put, instead of judges stretching the Constitution to make changes in society, desirable or not, Scalia believes it should be up to the people to make such changes by enacting laws. That’s reasonable.
Scalia said in a lecture at the University of Virginia law school in 2010: “My burden is not to show that originalism is perfect but that it beats the other alternatives, and that, believe me, is not difficult.”
In my opinion, he’s got it right.