Justice: Read the Constitution as it was written
VALPARAISO | U.S. Supreme Court Associate Justice Antonin Scalia on Thursday delivered a vigorous defense of the approach to constitutional interpretation known as originalism.
After he was introduced to a full chapel at Valparaiso University, Scalia minced few words in rebutting proponents of an evolving, "living Constitution."
Originialists believe interpretation of the Constitution should be based on the text, not changing social attitudes, Scalia said.
For example, the Eighth Amendment prohibits cruel and unusual punishment, and death was a standard penalty for felonies when the Constitution was written, Scalia said. The framers of the Constitution did not consider death cruel and unusual, nor is it so today, the jurist said.
And people never voted to prohibit the death penalty, he said.
Proponents of the living document stance argue that interpretation evolves and changes, and flexibility in interpretation reflects the progress of a mature society, Scalia said.
The idea is seductive but "nonsense," Scalia said. It assumes that societies only mature and don't decay.
That "Pollyannaish attitude" was never entertained by the framers, Scalia said, and the same people added a Bill of Rights because they had a distrust of future generations.
The framers removed some issues and principles from the reach of simple rule by majority, First Amendment freedoms among them, the judge said.
The Constitution is not a living document, but a legal document, Scalia said. As such it is rigid, not flexible.
Supporters of originalism must endure some decisions they do not necessarily find appealing, Scalia said.
But if standards of decency are to evolve and be defined, the task of defining them falls better to the legislative branch than the Supreme Court justices, he said.
In a question-and-answer session, Scalia asked which of any court in the past he would liked to serve on. Scalia thought for a moment and then chose the court that condemned the Greek philosopher Socrates.
"I think he got a raw deal," Scalia said.
Later in the day, Scalia presided over the final round of the university law school's annual Moot Court Competition.
Posted in Local on Friday, October 19, 2007 12:00 am Updated: 10:17 pm.
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