The Constitution is dead, and so now is the leading proponent of such a view.   Antonin Scalia was the best known and most eloquent proponent for deciding the rule of law absent the preferences of the decider.  That’s what made him a great Justice – that and his terrific ability to turn a phrase.  When looking for a candidate to take his seat on the high court, Congress and the President, now or after January 20, 2017, should require any nominee to pledge fidelity to the laws as written, not how they would wish them.  

Woodrow Wilson is credited with first producing the theory of the “Living Constitution”.  In constitutional jurisprudence, that theory does not provide a method for analysis of the a statute’s constitutionality, but instead the idea that when deciding whether a law be consistent with the constitution, the words and plain meaning of them need not be strictly held to.  What then do the laws mean you might ask?  Well, they mean whatever the person interpreting them is willing to say they do, and therein lies the trouble.

Scalia said “The only good Constitution is a dead Constitution. The problem with a living Constitution in a word is that somebody has to decide how it grows and when it is that new rights are – you know — come forth. And that’s an enormous responsibility in a democracy to place upon nine lawyers, or even 30 lawyers.”

The death penalty provides a perfect example to illustrate the differences between the living constitution believers and those from the original intent school, whose dean was Antonin Scalia.  There is an argument popular among those who believe in a living constitution that the 8th Amendment’s prohibition against “cruel and unusual punishment” means the death penalty is unconstitutional.  They would argue that in the light of modern times we recognize it as barbaric and inhumane to subject people, even those who have themselves committed horrific acts against others, to the death penalty, and would find it violative of the 8th Amendment.

Justice Scalia, and others who follow original intent, look to the history of the 8th Amendment.  Concluding (unchallenged) that no-one who voted to ratify the Amendment in 1791 thought that it prohibited the death penalty, they would rule it is constitutional.  

Sadly these opinions are sometimes then deceptively spun to imply or state that the jurist approves of or supports the death penalty (or any position they rule on).  The jurist guided by original intent makes no value judgment about the law however, he simply states that clearly the 8th Amendment does not prohibit it.  Good idea or not, he is unwilling to read something into the law he knows those who passed it did not believe, and its plain meaning allows.  “[Sometimes] I have to arrive at results that are stupid and even cruel,” Scalia said.

We need judges who are willing to rule that a law is permissible even if they loathe it, or forbidden even if they favor it.  Without such a jurisprudence we will have a system where the rule of man, and not the rule of law reigns supreme.  Our Constitution or any other law or rule need not be reinterpreted with a given judge’s perception of then present-day values applied to the text.  The amendment process exists so that we may enact new permissions or prohibitions as we prefer, provided we can thoroughly convince our fellow citizens to do likewise.

If you view the death penalty as an abomination, you should work to see it outlawed, but if you say it is prohibited by the 8th Amendment, you say that any law or constitutional provision is meaningless.  Scalia saw that, and worked tirelessly against that notion, which was in vogue and rising as he joined the high court. Both sides of the political aisle push for candidates who will vote the way they wish on controversial issues, and that’s why both sides are fighting now about when a vote on a potential nominee will take place – to give them the edge.  In a system where judges simply rule on the law as enacted, no such fight is required as Scalia himself in explains:

If we are selecting lawyers, if we are selecting people to read a text and give it the fair meaning it had when it was adopted, yes, the most important thing to do is to get a good lawyer. If on the other hand, we’re picking people to draw out of their own conscience and experience a new constitution with all sorts of new values to govern our society, then we should not look principally for good lawyers. We should look principally for people who agree with us, the majority, as to whether there ought to be this right, that right and the other right. We want to pick people that would write the new constitution that we would want.

Our constitution provides for political branches to decide political questions.  The Supreme Court is not suited to do so, and should be left to judging, not legislating.  “The judge who always likes the results he reaches is a bad judge.”