Rather, Scalia said, the court is divided between justices who believe the Constitution is subject to change from generation to generation and those who are “originalists” - believing the Constitution is a legal document that should stand through time. Scalia said he is an originalist and therefore in the minority on the Supreme Court.
The notion of the “living Constitution that morphs,” changing as justices exercise their ability to add or remove rights, has taken hold, said Scalia, UM's 10th speaker in a judicial lecture series begun in 1997.
The judge who believes in the living Constitution is “a happy fella” because in his mind, the Constitution means whatever he thinks it should mean, Scalia said. With originalists in the minority, the Supreme Court rewrites the Constitution term by term, he said.
A member of the court since 1986, Scalia received near unanimous Senate confirmation after President Reagan nominated him. But today, Scalia said, “I couldn't get 60 votes” in the 100-member Senate.
Senators considering whether to confirm a nominee now ask for thoughts on matters such as same-sex marriage and let the responses override the Constitution's bedrock in guiding their decisions, he said.
“It's a mini constitutional convention whenever you appoint someone new to the Supreme Court,” he said.
“It's hard to go back to where we were,” Scalia said. “But it's a happy fight and one worth engaging in.”
The lecture series that brought him to the Missoula campus featured Supreme Court Chief Justice John Roberts Jr. last year.
Scalia, a fisherman, said he “works in this marble palace in Washington” and does not “go out for a beer with the boys.”
“I come here to Montana now and then just to get down to real America,” he said.
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G. T. Dickson wrote on Sep 24, 2008 10:08 PM: