Talking to a group of college students, Supreme Court Justice Antonin Scalia argued that our Constitution is a document that is "dead, dead, dead." One person who wouldn't agree with that interpretation? President Lincoln.
Supreme Court Justice Antonin Scalia, arguably the high court’s most conservative member, has again grabbed headlines for remarks made while speaking to a group of students. On Monday, Justice Scalia told students at Southern Methodist University in Dallas, Texas, “It’s not a living document. It’s dead, dead, dead.”
Scalia was responding to SMU law professor Bryan A. Garner, who has co-authored two books with Justice Scalia, their latest being Reading Law: The Interpretation of Legal Text. Professor Garner told the crowd that the Constitution was a “living document.”
This is an issue that constitutional experts have debated for years and years, but at least one president is firmly on the record on the issue. And this President is one often cited by conservatives, but he is not in agreement with Justice Scalia.
In his first inaugural address, Abraham Lincoln referred to the Constitution as “organic law.” Twice. He also stated that the nation’s organic law could not possibly have answered our every governing question. Here are the two passages, emphasis added:
I hold that in contemplation of universal law and of the Constitution the Union of these States is perpetual. Perpetuity is implied, if not expressed, in the fundamental law of all national governments. It is safe to assert that no government proper ever had a provision in its organic law for its own termination. Continue to execute all the express provisions of our National Constitution, and the Union will endure forever, it being impossible to destroy it except by some action not provided for in the instrument itself.… no organiclaw can ever be framed with a provision specifically applicable to every question which may occur in practical administration. No foresight can anticipate nor any document of reasonable length contain express provisions for all possible questions. Shall fugitives from labor be surrendered by national or by State authority? The Constitution does not expressly say. May Congress prohibit slavery in the Territories? The Constitution does not expressly say. Must Congress protect slavery in the Territories? The Constitution does not expressly say.
Of course, we did go on to decide as a nation that a ban on slavery would be included in the Constitution with the ratification of the Thirteenth Amendment. As for whether the document we used to do it, our Constitution, is one that is “dead, dead, dead” or “organic”, that is a question likely to be debated for years and years to come.