Justice Scalia,Beck and The Living Constitution

I just started reading "The Living Constitution"by David Strauss and I'm finding it very interesting.I certainly don't know that much about how judges interpret the Constitution and form opinions from the writings of a document that is 220 years old. The author is a proponent of a living constitution.Strauss posits that the Constitution must evolve in a sensible way that relies on precedents and common law. He feels each generation has contributed precedents that guide us to meet the needs of our complex society.Strauss contrasts this approach with "originalism" which tries to capture the the meanings of the words used by the people who adopted the document.They believe that the Constitution shouldn't be interpreted by successive generations but used as a stable document that directs society efficiently with clarity from the founders generation.Originalists feel it's a form of cheating to give new meanings to words that differ from the understanding of the people who wrote the document.If a constitutional provision was generally understood to permit or forbid something when it was adopted,then it must be understood in the same way today. I believe Justice Scalia and T.V. host Glenn Beck are in this camp. Beck constantly brings the Constitution into discussions on his show.He interprets it as an originalist and makes his arguments with words generated 220 years ago. I guess it's similar to people who have a strict interpretation of the Bible and make judgements accordingly.Scalia has stated jokingly that he wants a" dead Constitution" arguing that it must be interpreted as the framers originally understood it.Unfortunately,this task is hard even for a historian.

Struss argues that there are problems with a dead Constitution. There are many principles embedded in our law that would be repudiated if originalist held their position rigorously.(1) Racial segregation of public schools would be constitutional (2) The government would be free to discriminate against women(3)The federal government could discriminate against minorities(or anyone else) pretty much any time it wanted to (4)The Bill of Rights would not be applied to the states(5)States could freely violate the principle of "one person,one vote" in designing their legislatures.(6) Many Federal labor,environmental and consumer protection laws would be unconstitutional.Many other examples are available.

Brown v. Board of Education changed the face of racial segregation in public schools when the Supreme Court held that state- imposed racial segregation in schools is unconstitutional.. When the 14th Amendment (Equal Protection Clause)was debated (1868) the Senate galleries we segregated. At the same time  of the amendment,women were discriminated and ignored under the (EPC).Not a lot has happened to the Constitution since the defeat of the Equal Rights Amendment. The Supreme Court(1970) has held that the (EPC) of the 14th Amendment limits the power of states to discriminate against women.The Constitution declares that no state shall deny any person equal protection of the laws....it doesn't say anything about the Federal government...so they could discriminate against anyone if you interpret it as an originalist. Again, the Constitution states that the Federal Government only applies the Bill of Rights,not the states.One could say that the states could abridge your religious freedom,unreasonable searches,etc. Since 1964, The Supreme Court has insisted that state legislative districts conform to the principle of one person,one vote.Before the rulings,the legislature were grotesquely malapportioned.

More to come tomorrow.