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Scalia on the “Living Constitution” Doctrine
ThreeBadFingers has an interesting transcript of a discussion with Justice Scalia.
Kent Hughes:
Mr. Justice Scalia, what do you think has caused the emergence of the Living Constitution doctrine? What were the forces in society, were there pressures that were not responded to by the legislature? What caused the emergence of this new doctrine?Justice Scalia:
I don’t know. Perhaps the question should be: how did we get away without having it develop much sooner. I mean it’s enormously seductive to a judge. The Living Constitution judge is a happy fellow. He comes home at night and his wife says, “Dear, did you have a good day on the bench?” “Oh, yes. We had a constitutional case today. And you know what? The Constitution meant exactly what I thought it ought to mean!” Well of course it does, because that’s your only criterion. That’s a very seductive philosophy. So it’s no surprise that it should take the society by storm. And it is the same thing for the man or woman in the street: to know that everything you care passionately about, whether it’s abortion or suicide, or whatever you care passionately about, it’s there in the Constitution. What a happy feeling. That’s what causes it. And that’s what makes it hard to call the society back from it. It’s tough medicine.
OTB has some other observations about the interview.
http://myopiczeal.blogsome.com/2005/03/17/scalia-on-the-living-constitution-doctrine/trackback/
Which is what Scalia would think…
Did you know that the Canadian Constitution and its Charter (The Canadian Bill of Rights) are both legally, officially living documents? No argument there. Makes interpretation harder at times, but at least the original approach is consistent.
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