Antonin Scalia v. The Iowa Supreme Court on the Living Constitution

scalia bookKey to Iowa’s 2009 Varnum v. Brien decision finding a constitutional right to gay marriage was its concept of a Living Constitution:

The framers of the Iowa Constitution knew, as did the drafters of the United States Constitution, that “times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress,” and as our constitution “endures, persons in every generation can invoke its principles in their own search for greater freedom” and equality.. . .  (“Our constitution is not merely tied to tradition, but recognizes the changing nature of society.”).

The idea of a Living Constitution was indispensable to a decision that found rights that could not have possibly been intended by the drafters of the constitution.  And, though there were no doubt various motives for Iowa voters targeting and removing judges who decided Varnum v. Brien, the motive of removing judges who, in effect, made themselves into legislators was not without merit.

United States Supreme Court Justice Antonin Scalia would argue that the judicial philosophy embraced by the Iowa Supreme Court is contrary to the essence of what a constitution is:

 It certainly cannot be said that a constitution naturally suggests changeability; to the contrary, its whole purpose is to prevent change – to embed certain rights in such a manner that future generations cannot readily take them away.  A society that adopts a bill of rights is skeptical that “evolving standards of decency” always “mark progress,” and that societies always “mature” as opposed to rot. Neither the text of the document nor the intent of its framers (whichever you choose) can possibly lead to the conclusion that its only effect is to take the power of changing rights away from the legislature and give it to the courts.  A Matter of Interpretation: Federal Courts and the Law, paperback pp. 40-41

Not only is such a philosophy a usurpation of the role of the legislative branch, it gives us no recognizable basis on how we shall determine when we have changed enough to warrant a new interpretation of the constitution:

 …there is no agreement, and no chance of agreement, upon what is to be the guiding principle of the evolution.. . . What is it that the judge must consult to determine when, and in what direction, evolution has occurred? Is it the will of the majority, discerned from newspapers, radio talk shows, public opinion polls, and chats at the country club? . . . the evolutionists divide into as many camps as there are individual views of the good, the true, and the beautiful. I think that is inevitably so, which means evolutionism is not a practicable constitutional philosophy. pp. 44-45

To embrace Scalia’s view is not the same as accepting or rejecting any of the various conclusions courts have reached under the guidance of the Living Constitution; it is simply a matter of leaving those issues to the popular vote. The vital interest is to let the constitution fix our rights and bind judges rather than allow the constitution to be a palette upon which judges may paint their ideas, however lofty they may esteem them.

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