Antonin Scalia and the “dead Constitution”

“If the issue of the franchise for women came up today, we would not have to have a constitutional amendment.”

A good friend of mine asked me to try to find an interview with Antonin Scalia. The late Supreme Court justice talked about a “dead Constitution,” arguing that people ONLY have rights that are spelled out in the document or by the formal amendment process.

My friend recalls him saying that women, or blacks, had no inherent rights until they could convince sufficient White Men to give them rights thru the amendment process.

I discovered that he laid out his “originalist” views many times. In 2005, he delivered one of his two most essential speeches, Constitutional Interpretation the Old Fashioned Way:

Consider the 19th Amendment, which is the amendment that gave women the vote. It was adopted by the American people in 1920. Why did we adopt a constitutional amendment for that purpose? The Equal Protection Clause existed in 1920; it was adopted right after the Civil War. And you know that if the issue of the franchise for women came up today, we would not have to have a constitutional amendment.

Someone would come to the Supreme Court and say, “Your Honors, in a democracy, what could be a greater denial of equal protection than denial of the franchise?” And the Court would say, “Yes! Even though it never meant it before, the Equal Protection Clause means that women have to have the vote.” But that’s not how the American people thought in 1920.

In 2008, Scalia vigorously defended a ‘Dead’ Constitution. As his 2016 New York Times obit noted:

“By choosing the appeals court judge and former law professor, Reagan believed that his nominee would become a… man who would unite a coalition of like-minded justices… But from the beginning, Justice Scalia defied all expectations. He eagerly participated in questioning from the bench during oral arguments when new justices traditionally held back. He became an outspoken, witty and acerbic writer and speaker, who was deified or vilified by people on opposite sides of the political divide.”

This is the first Monday of October, the traditional opening of the Supreme Court’s term. Scalia has been replaced by Obama nominee Merrick Garland Trump appointee Neil M. Gorsuch.

Author: Roger

I'm a librarian. I hear music, even when it's not being played. I used to work at a comic book store, and it still informs my life. I won once on JEOPARDY! - ditto.

One thought on “Antonin Scalia and the “dead Constitution””

  1. I strongly disagreed with pretty much everything that Scalia said during his time on the court, and I felt he polluted and degraded it. My views haven’t softened just because he’s dead. By all reports, Gorsuch is likely to be even worse. Keeping such bad jurists off the Supreme Court is one of the many reasons, and among the most important, why federal elections matter. The Court is often the only thing preventing tyranny by the US Government, especially the oppression of minorities, but it can’t do that if it’s dominated by nutty people like Scalia.

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