How Originalism Killed the Constitution

"A bushy-browed, pipe-smoking, piano-playing Antonin Scalia-Nino-the scourge of the left, knew how to work a crowd. He loved opera; he loved theater; he loved show tunes. In high school, he played the lead role in Macbeth: "I have no spur to prick the sides of my intent, but only vaulting ambition." As clever as he was combative, Scalia, short and stocky, was known, too, for his slightly terrifying energy and for his eviscerating sense of humor. He fished and hunted: turkeys and ducks, deer and boar, alligators. He loved nothing better than a dictionary. He argued to win. He was one of the Supreme Court's sharpest writers and among its severest critics."

""It's hard to get it right," he'd tell his clerks, sending back their drafts; they had that engraved on a plaque. Few justices have done more to transform American jurisprudence, not only from the bench but also from the seminar table, the lecture hall, and the eerie velveteen intimacy of the television stage. He gave one speech so often that he kept its outline, scribbled on a scrap of paper, tucked in his suit pocket. The Constitution is not a living document, he'd say. "It's dead. Dead, dead, dead!""

"Two hundred and fifty years after Americans declared independence from Britain and began writing the first state constitutions, it's not the Constitution that's dead. It's the idea of amending it. "The whole purpose of the Constitution," Scalia once said, "is to prevent a future society from doing what it wants to do." This is not true. One of the Constitution's founding purposes was to prevent change. But another was to allow for change without violence. Amendment is a constitution's mechanism for the prevention of insurrection-the only way to change the fundamentals of government without recourse to rebellion."

Antonin Scalia combined theatrical showmanship with fierce intellectual combativeness, enjoying opera, theater, show tunes, hunting, fishing, and dictionaries. He performed Macbeth in high school and carried a trademark energy, humor, and appetite for argument. Scalia insisted on rigorous writing and exacting standards, telling clerks "It's hard to get it right" and keeping a frequently delivered speech outline in his pocket. He rejected the idea of a living Constitution, famously declaring "It's dead. Dead, dead, dead!" The concept of constitutional amendment is presented as the essential, nonviolent mechanism for adapting government and preventing insurrection while preserving foundational stability.

Read at The Atlantic