In a column The Washington Times ran this week, Paul Greenberg contrasts his preference for a "living Constitution" with what he characterizes as Antonin Scalia's inflexible, "literal-minded" approach to interpretation. "The logical opposite of a living Constitution is a dead one," Greenberg writes. "Isn't it the genius of the Constitution that its principles are broad enough to meet the demands of changing times?…[The Framers] weren't laying down the law for the future; they understood the future would make its own law. They sought to build a framework within which change could safely take place, a flexible framework–not a straitjacket."
Leaving aside the question of whether Scalia practices what he preaches (a subject Cathy Young addressed in Reason last year), along with the intemperate remark that set Greenberg off (Scalia said "you would have to be an idiot" to believe in a Constitution whose meaning changes over time), Greenberg's flexibility worries me more that Scalia's (alleged) rigidity. There's a difference between applying general principles to new circumstances and discarding the principles because they seem outmoded. It's the difference between deciding that the First Amendment applies to television or the Internet and deciding that freedom of speech is too dangerous to tolerate during the life-and-death struggle against terrorism. It's a difference Greenberg does not seem to acknowledge:
Quite aside from how the Constitution has been changed by explicit amendment, many of its provisions have been changed and changed back again by judicial interpretation.
See the changing history of constitutional concepts like the general welfare, the supreme law of the land, the necessary and proper powers of government, due process, ex post facto laws, the right of contract, even habeas corpus. Pick your favorite. How they are applied depends on which court applies them in response to which changing circumstance.
Greenberg seems to be saying the Constitution means whatever the Supreme Court says it does, in which case it makes no sense to criticize a particular decision (say, Dred Scott or Plessy v. Ferguson) for being contrary to the Framers' intent or the plain meaning of the text. But to be worth anything, a constitution has to be rigid in the sense that it stops politicians from doing whatever they think the circumstances demand. If, as Greenberg appears to argue, the Constitution can be re-interpreted at will, what's the point of having one?
Although I am by no means a fan of all his opinions (his concurrence in last year's medical marijuana decision, for example, was a striking betrayal of the federalism he supposedly supports), Scalia seems to understand that interpreting the Constitution requires flexibility in certain respects and rigidity in others. He was flexible enough to conclude that flag burning is a form of political speech that ought to be protected by the First Amendment. But he was rigid enough to insist that the president, even in the midst of a "war on terror," may not detain a U.S. citizen indefinitely without trial unless Congress authorizes such detention by suspending the writ of habeas corpus in response to invasion or insurrection. While a more literal-minded jurist such as Robert Bork might have rejected the equation between flag burning and speech, both conclusions were solidly grounded in the text and intent of the Constitution. I'm more comfortable with a justice who at least fitfully applies principles than with one who avowedly makes it up as he goes along, even if the latter justice sometimes reaches libertarian conclusions.
It is hard for an intellectually honest person, even one who opposes legal restrictions on abortion and sex, to read Roe v. Wade or Lawrence v. Texas without shaking his head. (I realize there may be more credible ways to reach the same results, such as arguments based on the Ninth Amendment, but these also strike me as post hoc justifications for predetermined conclusions. If the Ninth Amendment was meant to prevent state bans on abortion and sodomy, why didn't anyone realize that until recently?) Although I was called a "faux libertarian" in another thread for failing to perceive a constitutional right to abortion, I do not dismiss out of hand the argument that we should take whatever freedom-friendly results we can get from the Supreme Court, regardless of how constitutionally sound the reasoning behind them is. But it seems to me this approach undermines respect for the Constitution and makes it harder to claim its safeguards even when they are clearly tied to its text, intent, and history.
If so, the approach (ostensibly) favored by Scalia (or Clarence Thomas) may give us more freedom and a less intrusive government than the one advocated by Greenberg or Stephen Breyer. More generally (and less realistically), I'm convinced that an honest, consistent attempt to apply the Constitution rather than twist it to fit one's policy preferences would, on balance, be a boon to liberty, even if it allowed some bad state laws to remain on the books. If the price of, say, restoring limits to the federal government's Commerce Clause powers is an abortion ban in South Dakota, that's a tradeoff I'm willing to make.