Mehra - Blog Post 10

  Near the end of his essay “Common Law Courts in the Civil-Law System,” the late Justice Antonin Scalia articulates his theory of constitutional interpretation. His view is that judges must look for “the original meaning of the text, not what the original draftsmen intended” (38). This stands against the approach of a “Living Constitution, a body of law that (unlike normal statutes) grows and changes from age to age in order to meet the needs of a changing society . . . it is the common law returned, but infinitely more powerful than what the old common law ever pretended to be” (38). While Scalia adamantly rejects the “Living Constitution” approach, I aim to show in this blog post 1) how this approach can help secure individual rights and 2) why Scalia’s approach might also be considered undemocratic. 

    To Scalia, the Living Constitution approach is problematic because it is outcome-based; as he writes, “the Court will distinguish its precedents, or narrow them, or if all else fails overrule them, in order that the Constitution might mean what it ought to mean” (39). Although this approach seems to allow for greater flexibility, Scalia argues that in reality, it “has imposed a vast array of new constraints-- new inflexibilities-- upon administrative, judicial, and legislative action” (41). Consequently, “devotees of the Living Constitution do not seek to facilitate social change but to prevent it” (42). 

Despite not being a “Living Constitutionalist,” I believe that Scalia gives an unfair portrait of the Living Constitution approach. In fact, I believe that this approach oftentimes (though not in all cases) permits restrictions on governmental entities (like the legislature or states) in order to secure individual liberties and fight for the common good. Take the case of Griswold v. Connecticut. At issue in Griswold was a 1879 Connecticut law that prohibits the distribution of contraceptives. The question is whether the state has the constitutional authority to prohibit married couples from purchasing contraceptives. The majority opinion says it does not. Justice Douglas stresses that certain rights, while not directly enumerated in the Constitution, naturally emerge out of rights that are enumerated. Such peripheral rights, or penumbras, are necessary to secure the enumerated rights. The right to privacy, stemming from several amendments, is one such penumbra. The marital relationship is an association that falls under the protection of these “zones of privacy,” and therefore the CT state law is unconstitutional. 

The ruling in Griswold relied heavily on precedent to find a “penumbra” consistent with the “spirit” of the BoR, making Douglas’ approach fairly consistent with a Living Constitution approach, or at least not consistent with Scalia’s Originalism. Griswold paved the way for many liberty-enhancing cases, including Roe v. Wade and Obergefell v. Hodges. In my view, these cases imposed restrictions on laws that states could pass in order to secure greater liberty for individuals. While such a result is not always the result of this approach, it oftentimes has been. This helps explain why Living Constitutionalism is considered a more “left” approach. Hence, Scalia’s assertion that the Living Constitution approach restricts social change is not quite fair. 

Scalia’s assertions about  “semantic intent” in response to Dworkin highlight a further tension between Scalia’s approach and the Living Constitution approach. According to Scalia, semantic intent “is rooted in the moral perceptions of the time” (145). So, “cruel and unusual punishment” means just about what it meant in 1791, and the original moral principle of the “freedom of speech” grounds its usage today (148). I question whether the approach of “semantic intent” that utilizes a stagnant moral principle that inevitably limits progress can be seen as equally “undemocratic” as the Living Constitution approach.