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Defending Our “Living Constitution”

One wonders whether Justice Scalia appreciated the geographic and historic context in which he delivered his recent speech in Missouri criticizing the idea of a “living constitution.”…

  • Kirsten D. Levingston
March 14, 2008

One wonders whether Justice Scalia appre­ci­ated the geographic and historic context in which he delivered his recent speech in Missouri criti­ciz­ing the idea of a “living consti­tu­tion.” The Justice, a self-described “origin­al­ist,” believes judges should inter­pret the Consti­tu­tion by discern­ing the founders’ inten­tions when they wrote it. Scalia rejects the notion of a “living consti­tu­tion,” in which the text and values inher­ent in the founders’ words are inter­preted in the context of modern chal­lenges and condi­tions. “The Consti­tu­tion does not change,” Scalia said in Missouri. “It means today what it meant when it first was writ­ten. … It does not morph.” The Justice has delivered remarks like these many times. Google “living consti­tu­tion” and “Scalia” and you’ll see what I mean. Still, this line of argu­ment suggests the Justice either misun­der­stands or mischar­ac­ter­izes the whole notion of the “living consti­tu­tion.”

Acknow­ledging a “living consti­tu­tion” does not condone usurp­a­tion of the legis­lat­ive func­tion by judges who substi­tute their desired outcomes for those achieved through the polit­ical process. Where the Consti­tu­tion’s text is unam­bigu­ous, that text controls. But where provi­sions are unclear, it is entirely proper for courts to consider the broader values under­ly­ing the Consti­tu­tion, like demo­cracy, equal­ity or privacy, in decid­ing what’s consti­tu­tional and what’s not.

The “Show Me State,” where Scalia delivered his address, brought us the Missouri Comprom­ise of 1820, a polit­ical deal that expan­ded our nation’s geography by main­tain­ing the balance between free states and slave states, and prohib­it­ing slavery in the territ­or­ies. The Comprom­ise also allowed the nation to avoid, as our founders had, answer­ing an import­ant ques­tion—When will our new demo­cratic nation elim­in­ate slavery? A few decades later, Missouri also brought us Dred Scott v. Sanford, the U.S. Supreme Court case inval­id­at­ing the Missouri Comprom­ise and conclud­ing that blacks could never have the freedoms and protec­tions of the Consti­tu­tion without legis­lat­ive author­iz­a­tion. Chief Justice Roger Taney penned the opin­ion, now univer­sally recog­nized as “legally (as well as morally) indefens­ible.” Wrap­ping his decision in the origin­al­ist cloak, Taney concluded the framers viewed blacks as “a subor­din­ate and inferior class of beings, who had been subjug­ated by the domin­ant race, and, whether eman­cip­ated or not, yet remained subject to their author­ity, and had no rights or priv­ileges but such as those who held the power and the Govern­ment might choose to grant them.” Chief Justice Taney’s ruling came down in March 1857—­pre­cisely 151 years before Scalia took the podium last week. 

But what if the nation were forced to wait for the polit­ical process to reflect consti­tu­tional values lost as we face new chal­lenges and condi­tions? The Univer­sity of Cent­ral Missouri is a prime example. Foun­ded 1817, the univer­sity was origin­ally segreg­ated by law. Battles over segreg­ated educa­tion in that state led to Missouri ex rel Gaines v. Missouri, one of the cases brought as part of the legal strategy lead­ing to the 1954 school deseg­reg­a­tion ruling in Brown v. Board of Educa­tion.  Mr. Gaines was a black student seek­ing admis­sion to the whites-only Univer­sity of Missouri law school because Missouri did not have a “separ­ate but equal” law program for blacks. In 1935 the Supreme Court ruled the state must either admit him to the white law school, or build a law school for blacks. The state legis­lature opted for the build­ing. And without the Court’s Brown v. Board ruling, Missouri might still be build­ing more law schools.

Despite its segreg­ated start, the Univer­sity of Cent­ral Missouri that Scalia visited now strives to attract minor­ity students and provide programs and services that promote under­stand­ing of cultural, racial and ethnic diversity. Accord­ing to its website, currently nine percent of its under­gradu­ate students are “ethnic minor­it­ies.” Our “living consti­tu­tion” made this possible.