Scalia, who is opposed to the notion of an “evolving” or “living” Constitution, told interviewer Calvin Massey that by giving some of the “necessarily broad” provisions of the Constitution an “evolving meaning,” these provisions fail to do their job, which is to put in place limitations on what society can or cannot do.
Even if “the current society has come to different views [than the original framers],” he said, “you do not need the Constitution to reflect the wishes of the current society.”
Instead, he said, when something isn’t found in the Constitution, it should be taken up by legislators. One of the examples that he used to illustrate this point was abortion.
“You want a right to abortion? There’s nothing in the Constitution about that,” he said. “But that doesn’t mean you cannot prohibit it. Persuade your fellow citizens it’s a good idea and pass a law.
“That’s what democracy is all about. It’s not about nine superannuated judges who have been there too long, imposing these demands on society.”
While Scalia said that sometimes Constitutional interpretation can be difficult, especially when the intent of the original framers isn’t clear, he said that some issues are abundantly clear, such as whether or not there is a constitutional right to abortion.
“I do not pretend that originalism is perfect,” he said. “There are some questions you have no easy answer to, and you have to take your best shot.
“We don’t have the answer to everything, but by God we have an answer to a lot of stuff … especially the most controversial: whether the death penalty is unconstitutional, whether there’s a constitutional right to abortion, to suicide, and I could go on.”
The 74-year-old jurist, who was appointed to the high court by President Ronald Reagan in 1986, made similar remarks in November, when he told those present at a University of Richmond luncheon that the idea of a living Constitution has allowed “five out of nine hotshot lawyers to run the country.”
At the time Scalia said that the high court distorted the meaning of “due process” (referring to legal procedure) in the 14th Amendment to invent new rights under a “made up” concept of “substantial due process.” That, he said, has allowed the 14th Amendment to become the gateway to legal abortion and other behaviors, which the constitutional authors never intended and viewed as criminal.