The Undead Constitution

Abstract

In what might be regarded as his standard 'stump' speech, Justice Scalia has repeatedly championed what he calls the 'dead Constitution.' The bon mot was and remains a good laugh line, but it has become increasingly inappropriate over the course of the quarter century during which Justice Scalia has been delivering it. When he was appointed to the Supreme Court in 1986, dead constitutionalism, that is to say, originalism, was still a mostly insurgent position within constitutional theory. Since then, and in no small part thanks to Justice Scalia's own influence, originalism has become a leading approach to constitutional interpretation.

Meanwhile, originalism's supposed archenemy, the living Constitution, has never been much more than a placeholder. As Professor David Strauss observes, 'the critics of the idea of a living constitution,' that is to say, originalists, "have pressed their arguments so forcefully that, among people who write about constitutional law, the term 'living constitution' is hardly ever used, except derisively.'

Keywords: dead Constitution, originalism, constitutional interpretation, living Constitution, common law method, interpret