Gero - Blog Post 10

In A Matter of Interpretation, Scalia criticizes the flexibility and liberality of the Living Constitution as imposing rather than removing constraints upon democratic government (page 41). The imposition of “a vast array of new constraints—new inflexibilities—upon administrative, judicial, and legislative action,” has produced less flexibility in government, not more (page 41). Scalia argues that this undermines the idea of a growing or evolving Constitution that adapts to a changing society. He then provides examples of these new prohibitions like disallowing the “invocation of God at public-school graduations,” “admitting in a state criminal trial evidence of guilt that was obtained by an unlawful search,” and “imposing property requirements as a condition of voting” (pages 41-42). 

            These examples, and Scalia’s broader argument, fail to account for the fact that imposing prohibitions or creating freedoms will have some inverse effect. There may be exceptions, but it is important to understand who and what is being restricted or freed in each scenario. To use Scalia’s example of prohibiting the invocation of God at public-school graduations. This may restrict individuals who believe in God from celebrating Him at their graduation, but it frees other people from the imposition of a religion that isn’t their own. Another example provided was the prohibition of admission of state criminal trial evidence of guilt that was obtained by an unlawful search. This restricts prosecution from admitting unlawful evidence, but it frees people from the threat of unlawful search. Finally, prohibiting imposing property requirements as a condition of voting. This may constrain prior property requirements, but it expands democratic government to a larger group of people and grants more people voting rights. 

            I argue that while Scalia can criticize the merit of specific constraints or freedoms, it is important to acknowledge that each has inverse effects, and neither is inherently democratic or undemocratic. Therefore, Scalia cannot argue that the Living Constitution imposes constraints upon democratic government because constraints, or lack thereof, often enhance or extend democratic governance.