Justice Scalia: The Constitution Is ‘Dead, Dead, Dead’

Justice Antonin Scalia

U.S. Supreme Court Justice Antonin Scalia is well known for ardently opposing the view that the Constitution is a “living document,” meaning its text should be interpreted in light of modern societal conditions. Reinforcing the extremity of his own view, Scalia accurately identified just what the opposite of a living document is during remarks at Southern Methodist University, disparaging children who come to the court and refer to the Constitution as “living”:

It’s not a living document. It’s dead, dead, dead.

Scalia has made similar comments before. In 2006, he said “you would have to be an idiot” to believe the Constitution is alive, and in 2008, he told NPR, “Let’s cut it out. Let’s go back to the good old dead Constitution.” In fact, given reports of similar comments just this past December at Princeton, his “the Constitution is dead” refrain seems to now be a standard part of his book tour. While there are reasonable interpretations of the Constitution that are defined as something other than “living,” Scalia’s extreme suggestion that the Constitution is “dead” reflects how ill-equipped his own brand of originalism is to address problems that are quite alive and well. But on this occasion, Scalia seemed to have realized the absurdity of his own claim, backtracking later in the event to say that “dead” was not a good description after all. “It’s an enduring document, not a dead one,” he said.

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