Defending Our Living Constitution

By Kirsten D. Levingston, Brennan Center for Justice. Posted March 17, 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.

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Kirsten D. Levingston joined the Brennan Center in the fall of 2000 to create and direct its Criminal Justice Program, where she is developing initiatives to influence the way citizens and decision makers understand, talk about, and make choices regarding criminal justice policy and practice.

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