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Scalia: Some modern constitutional interpretations seek rigidity

Supreme Court Justice Antonin Scalia said on Oct. 26 those who want legal interpretations to view the U.S. Constitution through modern-day lenses are seeking “rigidity,” not flexibility to fit contemporary times.

Scalia, a leading proponent of having courts adhere closely to the words of the Constitution, told an audience in Tucson that the rival approach favors sweeping judicial decrees to shape society “coast to coast” on issues such as abortion, rather than working to policy-changing laws state by state.

“You can change as fast as you like through the legislature,” Scalia said. “Pass a law.”

Scalia appeared with fellow Justice Stephen Breyer in a Tucson Convention Center auditorium to discuss how courts should apply the Constitution.

The Constitution has to be viewed as evolving because otherwise injustices such as segregation in schools would still be permitted, Breyer said.

“They tried the separate but equal thing but it didn’t work,” he said.

Breyer said interpretations should consider current circumstances because society has different values on matters such as cruel and unusual punishment than it did in the 18th century.

“They used to flog people on ships,” Breyer said in discussing the Eighth Amendment.

The Supreme Court in 2005 abolished capital punishment for people under age 18, and Brewer said that reflects a broad consensus children shouldn’t be executed.

Scalia, who dissented from the 2005 decision, said the most important circumstances haven’t changed since the Constitution was ratified two centuries ago.

“Death was death then. Death is death now,” he said. “You’re talking about applying different values.”

It creates a slippery slope to apply today’s values to the Constitution, Scalia told his colleague.
“Stephen, I don’t know how you do it. I don’t know how you play that game. I would lay awake at night,” he said.

The event was hosted by the University of Arizona law college’s William H. Rehnquist Center on the Constitutional Structures of Government.

One comment

  1. Kudos to Justice Scalia, who is correct… if we applied today’s suspect “values” to the Constitution, America would be in greater trouble than it already is. Breyer is useless and fails to recognize the Supreme Court upheld Jim Crow Laws (in its wisdom) i.e., “In 1896, the U.S. Supreme Court legitimized the principle of “separate but equal” in its ruling Plessy vs. Ferguson. The high court rulings led to a profusion of Jim Crow laws. By 1914, every Southern state—including Virginia—had passed laws that created two separate societies—one black, the other white. This artificial structure was maintained by denying the franchise to blacks through the use of devices such as grandfather clauses, poll taxes, and literacy tests (http://www.mcps.org/ss/5thgrade/ActCrowLaws.pdf). When the court determines law or intercedes in the way Breyer believes the intent of the Constitution is perverted. The reference provided demonstrates the fallacy of Beyer’s view in the 5th grade.

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