Justice Scalia: 'Constitution is not a living organism'
ScaliaÂ’s entitled to his opinion, as is every other American, and alone his opinion carries no more authority or weight than any other AmericanÂ’s; and his opinion does not hold with the facts and evidence concerning the Constitution.
Justice KennedyÂ’s understanding of the FramersÂ’ intent is the most accurate, as he expressed in
Lawrence:
Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.
The Framers correctly understood that it would be impossible to incorporate a finite ‘list’ of citizens’ protected rights, or have a comprehensive enumeration of government’s authority, where it is the principles enshrined in the Constitution which remain constant, allowing Americans to realize manifestations of individual liberty the Framers sought not to identify in total, and wisely so.
The Constitution is, therefore, neither ‘living’ nor ‘static,’ it is not a mere ‘blueprint’ of government, it is more than just “what it says and doesn't say…” It is a document of the law, the culmination of centuries of Anglo-American jurisprudence seeking to establish a relationship between government and those governed were citizens’ civil liberties are safeguarded.
But the Constitution is not solely a ‘straightjacket’ on government, it acknowledges the legitimate role of government in civil society, by affording Congress powers both enumerated and implied (
McCulloch v. Maryland (1819)), where acts of Congress are presumed to be Constitutional until the Supreme Court rules otherwise (
US v. Lopez (1995)), and where the laws enacted by Congress and the rulings of Federal courts are supreme to the laws and measures of the states and local jurisdictions (
Cooper v. Aaron (1958)).
The interpretive authority of the courts is beyond dispute, as authorized by the doctrine of judicial review, and as practiced by Colonial courts well over a century before the Foundation Era (
Marbury v. Madison (1803)). Judicial review and the interpretive authority of the courts is not an ‘invention’ of the Supreme Court, as the Court merely codified a long-standing legal doctrine where Americans of the Framing Period fully expected the courts to review acts of Congress and invalidate those acts repugnant to the Constitution.
The Constitution exists only in the context of its case law, as interpreted by the Supreme Court; the Founding DocumentÂ’s very construct, history of its composition, and foundation on English common law dating back to the
Magna Carta and the Assizes of Henry II is indisputable evidence of that, to argue otherwise is to be ignorant of these facts, and seeks only to promote a partisan agenda, having nothing to do with the Constitution and its meaning.
