Attack Update: Feb. 13, 2006

The attack: “ That’s the argument of flexibility 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. 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.”
— U.S. Supreme Court Justice Antonin Scalia, at a speech sponsored by the conservative Federalist Society.

Significance: Scalia is taking part in the political debate over the courts. His comment is in line with a drumbeat of right-wing attacks on so-called “judicial activists.” Scalia sets up a false dichotomy between judges like himself, who he calls “originalists,” and judges he referred to in his speech as “idiots” — judges he believes are making up the law as they go along by injecting their own personal beliefs into constitutional law.

Scalia’s dichotomy depends on the flawed assumption that there is such a philosophy as objective originalism that allows judges to simply determine precisely what the Constitution’s framers meant on every constitutional question. In reality, many constitutional provisions are ambiguous and broadly phrased (for example, provisions referring to due process, equal protection under law and cruel and unusual punishment). Moreover, since the nation’s founding, highly respected jurists, including Chief Justice John Marshall, Justice William Brennan and Justice Thurgood Marshall, have viewed the Constitution as a living document that must be adapted to changing social circumstances. In Scalia’s view, apparently, these respected judges are “idiots.”