On Monday, January 28, 2012 Supreme Court Justice Antonin Scalia and Southern Methodist University Law Professor Bryan Garner appeared at SMU to discuss their book “Reading Law: Interpretations of Legal Texts“. During the discussion, as Tasha Tsiaperas of the Dallas Morning News reports (subscription required), Scalia said of the US Constitution:
“[The U.S. Constitution's] not a living document. It’s dead, dead, dead.”
Understandably, plenty of Liberal and Conservative news outlets picked up this juicy quote, including MSNBC, Politico, The Hill, the Democratic Underground, Hot Air, and even the bastion of “Fair and Balanced”, Fox News. All ran the story with little or no additional detail or context: Almost as if to imply “dead” meant permanently gone, and after a period of mourning and eulogies, buried, fondly remembered, and eventually forgotten.
Problem is, with just a little bit more reporting, Ms. Tsiaperas could have added balance to the story by placing Justice Scalia’s seemingly sensational remark in it’s proper context. Not to tell a journalist how to perform their job, mind you, but something as easy as a 5-minute Google search* may have sufficed:
2012, Princeton University: “I have classes of little kids who come to the court, and they recite very proudly what they’ve been taught, ‘The Constitution is a living document.’ It isn’t a living document! It’s dead. Dead, dead, dead! No, I don’t say that. … I call it the enduring Constitution. That’s what I tell them.”
2008, Wyoming State Bar: “The Constitution means today what it meant when it was adopted…”
2005, Scalia article “God’s Justice and Ours“: “…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.”
2004, University of Vermont: “You may find that the dead constitution is to your liking. I can package it better than that. Let’s call it the enduring constitution.”
2000, Texas Wesleyan University School of Law: “The Constitution does not change in its meaning. What it approved back in 1789, or 1791 if talking about the Bill of Rights, it approves of now. What it forbad then, it forbids now.”
In fact, Ms. Tsiaperas could have done what Dallas Voice reported Anna Waugh did in her article: Report what Justice Scalia said a little later during his SMU appearance:
“It’s an enduring document, not a dead one. …The idea of a living document is so contrary to democratic self-government. I can’t believe how it has come to be so widely accepted.”
I’ve no idea why Ms. Tsiaperas didn’t include this in her story. Perhaps it was a tight deadline, a heavy-handed editor, or some other reason. But, in light of Justice Scalia’s history of being an “Originalist”, and concerns regarding the constitutionality of President Obama’s Affordable Care Act, gun control, and possibly illegal aliens, her omission is glaring.
* Google: scalia constitution dead
Thanks for reading!
