Justice Antonin Scalia’s outspoken advocacy for originalism has on occasion reached controversial heights. Certainly, that may well be the case with his most recent comments, excoriating schoolchildren for misinterpreting the constitution (or, one supposes, for accepting their teachers’ willful misinterpretation):
On Monday, Scalia had a different target for his ire. He complained of schoolchildren who visit the Supreme Court and call the Constitution a “living document.”
“It’s not a living document,” Scalia said, according to the Dallas Morning News. “It’s dead, dead, dead.”
Scalia also suggested on Monday night that his strict interpretation of the Constitution sometimes forces him to write opinions that conflict with his personal beliefs.
This issue – that of the “living constitution” – has been a pet peeve of Scalia’s for a while. As far back as March of 2005, Scalia had attacked the idea of a “living constitution,” according to the Associated Press:
Justice Antonin Scalia criticized the Supreme Court’s recent decision to strike down the juvenile death penalty, calling it the latest example of politics on the court that has made judicial nominations an increasingly bitter process.
In a 35-minute speech Monday, Scalia said unelected judges have no place deciding issues such as abortion and the death penalty. The court’s 5-4 ruling March 1 to outlaw the juvenile death penalty based on “evolving notions of decency” was simply a mask for the personal policy preferences of the five-member majority, he said.
“If you think aficionados of a living Constitution want to bring you flexibility, think again,” Scalia told an audience at the Woodrow Wilson Center, a Washington think tank. “You think the death penalty is a good idea? Persuade your fellow citizens to adopt it. You want a right to abortion? Persuade your fellow citizens and enact it. That’s flexibility.”
“Why in the world would you have it interpreted by nine lawyers?” he said.
Scalia made similar remarks last year while speaking at Princeton University. Indeed, attacking the concept of a “living constitution” has become something of a staple in the Justice’s speeches, as has making controversial comments. Nevertheless, to hear him complain of its coming from the mouths of children is a new level of ferocity.