Kim Blog Post 10

     In A Matter of Interpretation, Scalia makes an argument against The Living Constitution, which claims for an evolutionary approach to interpret the Constitution "to provide 'flexibility' that a changing society requires." (pg. 41) He argues that the evolving Constitution has imposed restrictions upon "administrative, judicial, and legislative action" instead of eliminating the restrictions of democratic government. Furthermore, he argues that those who argue for a Living Constitution have nothing to appeal to in deciding "when and in what direction evolution occurred." However, Scalia argues that originalists do have something to appeal to which is the original meaning of the text. 


    I particularly found one of his examples on the elimination of liberty quite interesting. When he discusses the case at issue with the 6th amendment. "The only significant things that have changed... society's assessment of where the proper balance ought to be struck between the two extremes."(pg. 44) This seemed to be a case of bright lines and at where we should draw the bright line. Scalia seems to draw the bright line of the 6th Amendment in favor of a criminal right to face one accuser when the situation is between assuring that a criminal has a right to face his accuser and the psychological stability of a victim. He argues that "moral principles, most of us think, are permanent." (pg. 146) Therefore the right to face one's accuser, the content of the rights, cannot be thought to change with the passage of time. Once this bright line is drawn in the Constitution on an interpretation based on expectation originalism where clauses of the Constitution should be understood to have consequences that the original writers expected them to have, it seems to not change with the passage of time or the different content that it may be invoked. 


    I think internationally and historically, one could make a strong case for this. Many of the ideas in the Constitution and promulgated by Rousseau are not unique to Western text. One can definitely find historical texts and scholars promulgating similar ideals in Asia. Considering the geographical distances and the chronological differences at the time they occurred, the same rights seem to exist no matter what time or place one is in, not made with the changing of times. These rights merely seem to be 'discovered' and codified. Therefore the bright lines drawn and thought to be correct at the time of the founding fathers could be argued that they do not change with time nor should they change with content. With this said, the Constitution may not contain all the moral principles as some may not have been 'discovered' and if it does not encompass a right that should be put in, then I wonder what the problem would be with an amendment. For example, a homogenous country may have in the Constitution that all ethnic members of that country are to be treated equally. This is certainly true and such a principle probably would not change with the passage of time. But if suddenly there is an influx of immigrants then a new moral principle may be discovered and an amendment could add another principle where 'every ethnic member and all other ethnicities as well.' 

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