Political Science

Justice Antonin Scalia rejects the notion of a living constitution which can be used holistically to account for social change. According to him, the constitution changes as the standards of decency changes over time. Now, in the process of restructuring, the constitution becomes a dead document. The changes adopted destroyed the original intention of the constitution. These changes are however helpful because it upgrades the interpretative power of the constitution as far as law and morality are concerned. Moreover, these changes are only adopted if they are rational and necessary.

Now, the notion of a living constitution is a myth. For a constitution to be holistically universal, it must be valid from one historical period to another. This is impossible because the standards of decency (morality) changes over time. Because morality is subject to social change, the law must therefore be subjected to change.

Laurence Tribe agrees with Scalia on the notion of a changing constitution. According to him, the constitution must adopt to social and political changes in order to retain legitimacy. However, the elements of the old constitutions are still in place, unrevised. Despite radical changes in form and content, the constitution still appeals to its historical value as a legitimate document. According to him, change not only makes the constitution valid, it also reinforces the idea of a shadow document  a document where the key historic values of a nation are kept.

Now, it is possible, as Scalia concurs, for a given right or power to be textually absent in the constitution while at the same time legally accepted. The constitution may serve as a hint for interpretation, and thus as an operative reference to a given problem. As Tribe noted, the constitution is not a simply aggregate of laws, it is a governing legal principle.