Scalia and the Case of the Dead Constitution

Antonin Scalia was known for constitutionalism, humor, and mischievousness. All three were on display when he used to tell school children that the Constitution is “dead, dead, dead!”

Much more reassuring to children is the message from progressive justices that the Constitution is “living.” After all, living is better than dead, right?

It depends on what you mean by “living” and “dead.” When progressive justices say the Constitution is “living,” they mean it the same way a philandering husband does when he says his marriage vows are “living”; that is, evolving with the needs of the times. But the man’s wife probably considers their marriage vows to be “dead”; that is, of no real meaning or effect. And if the vows are to become “living” from the wife’s perspective, they will have to become “dead” from the husband’s.

This is exactly what Scalia was getting at when he told the school children that the Constitution is “dead.” He meant that it has fixed meaning, and interpreting it that way is the only way the Constitution can have living effect today. If the Constitution is “living” in the progressive sense, it has become a ventriloquist’s dummy; it does not speak for itself; it is dead.

The Founders, like Scalia, presumed the Constitution to have fixed meaning. That much is proven by the very fact that they included a procedure for amending it. If the Constitution were “living” in the progressive sense, it would not need an amendment procedure; future justices could simply “locate” new meaning in the words, as in fact progressive justices have often done.

The progressive approach has the beauty of efficiency. Why go through the lengthy, difficult amendment process, when the justices can simply assign new meaning? The only problem is that we are no longer living under the form of government created by the Constitution. And because Supreme Court justices are appointed for life, and it only takes five of them to change the meaning of the Constitution, neither the Founders nor you nor I are the ones deciding what our form of government shall be.

Scalia’s lesson is one every American should learn. While the school children might struggle to understand it, they need only conduct a little experiment, and all will become clear. The children should try assigning “living” meaning to their teacher’s instructions. They will learn soon enough that their teacher’s instructions are “dead, dead, dead,” and they are in trouble, trouble, trouble.  –Alan Burrow