Re: Scalia and the "living Constitution:" one example (presumably among
many) of Scalia stating his viewpoint can be found in his essay on the death
penalty in Erick C. Owens, John D. Carlson, and Eric P. Elshtain, eds.,
"Religion and the Death Penalty: A Call for Reckoning."

Scalia: If I subscribed to the proposition that I am authorized (indeed, I
suppose, compelled) to intuit and impose our "maturing" society's "evolving
standards of decency," this book and the Pew Forum conference that preceded
it would be for me a sort of continuing judicial education, a preparation
for my next vote in a death-penalty case. As it is, however, the
Constitution that I interpret and apply is not living but dead--or, as I
prefer to put it, enduring. It means today not what current society (much
less the Court) thinks it ought to mean, but what it meant when it was
adopted. (p. 232)

This is a very interesting essay for a lot of reasons -- including the fact
that there are moments when Scalia's expressed rationales for reasoning seem
to contradict each other, and his assertion at the end of the quotation,
that the Constituion means now what it "meant" when it was adopted --
certainly a problemmatic point of definition, if nothing else.

Anthony Santoro
Ph.D. Candidate, University of Heidelberg




On 2/23/07, Donald W. Moore <[log in to unmask]> wrote:
>
> >
> > Finally, the Constitution IS a living document.  The example I gave
> > in a previous message--the expansion of the franchise from white
> > property-owners to a more inclusive body--is the ultimate example.
>
> Justice Scalia would disagree, and has. He was quoted a few months
> back--in a speech, not in a legal brief (and no, I don't have the
> particulars, but it made the news)--as saying that the Constitution
> is a legal document, just like the deed to your house. How would you
> like the deed to your house to be a "living document" subject to re-
> interpretation every few generations? Wonder what would happen to
> legal chain of title? His example, not mine.
>
> ___________________
> Donald W. Moore
> Virginia Beach, Virginia
>
>
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