Antonin Scalia’s “Originalism” Killed the U.S. Constitution

Few justices have done more to reshape American jurisprudence—not only from the bench but also in classrooms, lecture halls, and on television—than the late Justice Antonin Scalia, Jill Lepore wrote for The Atlantic.

“The whole purpose of the Constitution,” Scalia once said, “is to prevent a future society from doing what it wants to do.” (Photo: Stephen Masker Flickr)

Scalia often gave one signature speech, keeping its outline scribbled on a scrap of paper in his suit pocket.

"The Constitution is not a living document," he would say. "It’s dead. Dead, dead, dead!" Lepore argued that 250 years after Americans declared independence and began drafting state constitutions, it is not the Constitution that has died, but the idea of amending it.

“The whole purpose of the Constitution,” Scalia once said, “is to prevent a future society from doing what it wants to do.”

Lepore countered that this is not true: one of the Constitution’s purposes was to prevent change, but another was to allow change without violence.

Amendment, she wrote, is a constitution’s mechanism for preventing insurrection—the only way to change government fundamentals without rebellion.

Amendment is so central to US constitutional tradition—so systematic and so rooted in endurance through adaptation—that it can best be described as a philosophy.

Yet this philosophy has all but been forgotten.

For more than two centuries, constitutional change through formal amendment alternated with judicial interpretation by the Supreme Court. That balance has now broken down.