ivashkiv blog post 10

 Scalia’s logic to oppose an evolving constitution was very interesting to read in the context of the reading we had for Tuesday’s tutorial. In that section, Scalia was wary of how subjective legislative intent could lead to an undemocratic outcome: unelected judges would unfairly assume legislative responsibilities. However, fascinatingly, Scalia rejects the evolving constitution because it is too democratic. If the constitution can be adapted, then appointments will be politicized, and the population will have a new tool to help codify their own interests in law. Dworkin does a good job highlighting this surprising defense by Scalia. He writes that  “Why does the resolute text-reader, dictionary-minder, expectation-scorner of the beginning of these lectures change his mind when he comes to the most fundamental American statute of them all?” (126). 
However, his rebuttal to Scalia is not meaningful. He points out that the judges who have adopted the evolving constitution reading are the ones who have granted individuals greater rights. It is overly deductive to assume that judges will continue to protect individual rights in a system that allows for the constitution to change meaning. This is especially true considering the small sample size of the idea of the evolving, or “moral,” reading of the constitution (123).  The number of hypothetical situations that show this trouble is endless. However, it is not necessary to rely on hypotheticals. Recent years have shown that the Supreme Court is not impervious to being politicized. Barrett’s rushed appointment shows the weight that party lines have on the court. So, Scalia’s response to Dworkin, “has Professor Dworkin not observed that, increasingly, the “individual rights” favored by the courts tend to be the same “individual rights” favored by popular majoritarian legislation?,” is extremely relevant in a time when judges seem to always vote on party lines.
Scalia is not convincing either. This is mainly because championing individual rights does not fit in with the rest of Scalia’s argument. It is completely unfair to criticize Dworkin on the basis that a moral reading might restrict individual rights while defending originalism in the constitution. Originalism, semantic or expectation-based, does not necessarily protect individual rights if they are “time-dated” (148). Time-dated rights cannot project the needs of individual liberties in different generations. In this way, Scalia’s introduction of protecting individual rights puts Dworkin and Scalia in a position that is hard to defend, either by majoritarianism or the usual pitfalls of originalism.