The Supreme Court Historical Society hosting an awesome, and sold-out event on March 23, featuring a conversation between Justice Scalia and Justice Breyer on Original Intent and the Living Constitution. The following is a (near) transcript recorded by Corey Carpenter, who attended the debate tonight.
Moderator (James Duff): Does the public or media enter into the decision making process?
Breyer: We take that into account, however the ideal is 0 effect. Hamilton says that the judiciary should enforce the Constitution as it is stated.
Scalia: That’s why we have life tenure, so that we are not afraid to tell the truth. When your job is to tell people no, one should not always expect popularity.
M: Why tie current decision to the Framers?
S: I try to tie it to the people during the founding, not the framers. It’s not about original intent but original meaning. I do so because it depends on consent, which is what people agree to on adoption.
The Bill of Rights is anti-democratic in that it stops the majority from doing what they want, but it is also democratic in that the people made it.
For example, the 8th Amendment. No American voted to eliminate the death penalty when adopting the Amendment. We know this because back then, all felonies were death-eligible, it was by definition. To say it was off limits is just not the will of the people.