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Antonin Scalia, Live at Lunchtime Tomorrow, Or, Why a “Living Constitution” Means a Dead Democracy

At the Sheraton Hotel here in Palo Alto tomorrow at noon–again, that’s tomorrow, Friday, at noon–I’ll be interviewing Mr. Justice Antonin Scalia about his remarkable new book, Reading Law: The Interpretation of Legal Texts. And you’re all invited.

Just listening to the Justice will represent a feast of course, but (to be mundane) lunch will be included in the price of admission, which is $40 for ordinary folk and $20 for students. To get your name on the list at the door, please note, you must register here.

I hope to see some of the California Ricochetti tomorrow–and in the meantime, a taste of what to expect. From Reading Law:

Do the people want the death penalty? The Constitution neither requires nor forbids it, so they can impose or abolish it, as they wish. And they can change their mind—abolishing it and then reinstituting it when the incidence of murder increases.

images-1.jpgWhen, however, Living Constitutionalists read a prohibition of the death penalty into the Constitution— and no fewer than four Supreme Court Justices who served during the tenure of your judicial coauthor would have done so—all flexibility is at an end. It would thereafter be of no use debating the merits of the death penalty, just as it is of no use debating the merits of prohibiting abortion. The subject has simply been eliminated from the arena of democratic choice. 

And that is not, we reemphasize, an accidental consequence of the Living Constitution: It is the whole purpose that this fictitious construct is designed to serve. Persuading five Justices is so much easier than persuading Congress or 50 state legislatures—and what the Justices enshrine in the Constitution lasts forever.

In practice, the Living Constitution would better be called the Dead Democracy.