Krasemann - Blog Post 10

 

 

In A Matter of Interpretation, Scalia rejects the Living Constitution approach to constantly updating and adjusting the Constitution to fit current societal standards. Similar to other Blog Posts, I would like to consider the democratic aspect of Scalia’s assertions against a living Constitution and whether that constitutes a democracy.

 

Scalia establishes that “It certainly cannot be said that a constitution naturally suggests changeability; to the contrary, its whole purpose is to prevent change—to embed certain rights in such a manner that future generations cannot readily take them away” (40). In other words, Scalia believes that the Constitution ought to provide a framework of rights that does not change over the course of time. Judges and legislators ought to refer to the Constitution as the groundwork of legislative intercourse over the years. However, could this not interfere with democratic institutions and fundamentals? If the people wish to change the Constitution in a democratic fashion, would standing in their way prevent the execution of the democratic right?

 

In response, Scalia would likely point out that the Constitution was created on democratic principles as a guideline for generations to follow, not change. He says that “By trying to make the Constitution do everything that needs doing from age to age, we shall have caused it to do nothing at all” (47). However, it still seems to be somewhat of a restriction of democracy by disallowing the ability to alter rights over time. What if the Constitution no longer represents individual rights and freedoms at all? Democracy ought to interfere before society reaches this point.

 

Scalia claims that “the reality of the matter is that, generally speaking, devotees of The Living Constitution do not seek to facilitate social change but to prevent it” (42). This is interesting, because a counterargument would consider that social change requires adjusting the Constitution to adjust for principles and applications which no longer stand. Scalia points out that “the phrase “the freedom of speech” careens down through the centuries, to pro-duce whatever results later Americans desire it to produce, so long as those results have something to do with the ability to engage in “speech”” (133). But if we wish to completely alter what the word speech means in a democratic fashion, should that not be permitted? The Living Constitution and law are slippery slopes as they pertain to democracy because they were created as powerful rights to abide by regardless of the circumstance.

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