The Constitution: Dead or Alive

Excerpt

In recent years, theories of the legal interpretation of the Constitution have been a battlefield on which self-described originalists, preeminently Justice Antonin Scalia, who view the meanings of the Constitution as fixed at the time of its framing, are arrayed against living constitutionalists, who declare it to be alive and subject to change over time. Viewing the battle in this way is somewhat misleading since some of the most formidable antagonists of originalism, Lawrence Tribe and Ronald Dworkin, refuse to be described as advocates of a living constitution. As both Tribe and Dworkin, who have their own differences, have shown, it is possible to hold the view that the text is the main or ultimate arbiter of interpretation without being an originalist in Scalia’s understanding of the word. The division between the two camps is in political terms a division between conservatives and liberals, Scalia on the conservative side, Tribe, Dworkin and liberal constitutionalists, on the liberal. In the current composition of the Supreme Court the conservatives have the advantage. I begin with Scalia. As a Supreme Court Justice with a forceful and provocative style, he has commanded the spotlight. My focus is on his recent book written in collaboration with Bryan A. Garner Reading Law: The Interpretation of Legal Texts (2012) and an earlier essay “A Matter of Interpretation” (1997). …