U.S. Supreme Court Justice Antonin Scalia is well known for ardently opposing the view that the Constitution is a “living document,” meaning its text should be interpreted in light of modern societal conditions. Reinforcing the extremity of his own view, Scalia accurately identified just what the opposite of a living document is during remarks at Southern Methodist University, disparaging children who come to the court and refer to the Constitution as “living”:

It’s not a living document. It’s dead, dead, dead.

Scalia has made similar comments before. In 2006, he said “you would have to be an idiot” to believe the Constitution is alive, and in 2008, he told NPR, “Let’s cut it out. Let’s go back to the good old dead Constitution.” In fact, given reports of similar comments just this past December at Princeton, his “the Constitution is dead” refrain seems to now be a standard part of his book tour. While there are reasonable interpretations of the Constitution that are defined as something other than “living,” Scalia’s extreme suggestion that the Constitution is “dead” reflects how ill-equipped his own brand of originalism is to address problems that are quite alive and well. But on this occasion, Scalia seemed to have realized the absurdity of his own claim, backtracking later in the event to say that “dead” was not a good description after all. “It’s an enduring document, not a dead one,” he said.

In a Princeton University speech Monday, Justice Antonin Scalia defended his opposition to LGBT equality and his previous comments equating homosexuality with murder and bestiality.

When asked by openly gay Princeton freshman Duncan Hosie about his anti-LGBT comments, the senior Associate Justice on the high court stood by his logic as “reduction to the absurd.”

The Associated Press reports:

“It’s a form of argument that I thought you would have known, which is called the ‘reduction to the absurd,’” Scalia told Hosie of San Francisco during the question-and-answer period. “If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against other things?”

Scalia said he is not equating sodomy with murder but drawing a parallel between the bans on both.

Then he deadpanned: “I’m surprised you aren’t persuaded.”

Scalia defended his extreme rhetoric, noting “I don’t think it’s necessary, but I think it’s effective,” and told the audience that legislatures have the right to ban that which they believe immoral. He also dismissed the importance of the Bill of Rights as an “afterthought,” compared to the U.S. Constitution’s overall structure, observing, “Every tinhorned dictator in the world has a bill of rights.”

Scalia will be required to “faithfully and impartially” consider two same-sex marriage cases this term.

New York Times v. Sullivan is one of the two or three most important free speech cases in American history. In essence, New York Times held that reporters and other individuals cannot be held liable for making unintentionally false statements against public figures so long as they do not do so with “reckless disregard of whether [their statement] was false or not.” Without this decision, every writer, reporter and blogger in the country would live in constant fear that if they relied on the wrong source or made any of a number of innocent mistakes, the result could be financial ruin.

Indeed, nothing highlights the danger of a different legal regime more than the facts of the New York Times case themselves. Civil rights advocates ran an ad in the New York Times that includes a number of trivial factual errors, such as claiming Dr. Martin Luther King, Jr. had been arrested seven times when in fact he at only been arrested four times when the ad ran. Based on these minor errors, an Alabama court ordered the New York Times and the civil rights leaders to pay $500,000 in a transparent effort to shut down speech critical of Jim Crow — a practice which was very common in the segregationist south. So New York Times v. Sullivan did not simply protect journalism generally, it ended the apartheid states’ practice of deliberately intimidating people who report on civil rights by awarding massive libel awards to segregationists.

During a recent Charlie Rose interview, Supreme Court Justice Antonin Scalia had this to say about the decision:

One of the evolutionary provisions that I abhor is New York Times v. Sullivan. It made a very good system that you can libel public figures at will so long as somebody told you something — some reliable person — told you the lie that you then publicized to the whole world. That’s what New York Times v. Sullivan says. That may well be a good system and the people of New York state could have adopted that by law, but for the Supreme Court to say that the Constitution requires that — that’s not what the people understood when they ratified the First Amendment. . . .

The issue is “who decides?” Who decides what’s right? And it’s the people. The background rule is democracy, and the rule of democracy is the majority rules.

Watch it:

Scalia’s professed love of democracy is admirable, but the truth is that Scalia only believes in the democratic process when democracy does what he wants it to do. He was one of the five justices who voted to give the presidency to George W. Bush, and he voted to strike down the Affordable Care Act based on reasoning that, in the words of a leading conservative judge, had no basis “in either the text of the Constitution or Supreme Court precedent.”

Conservative Justice Antonin Scalia routinely pretends that his approach to the law is merely to follow the clear language of the Constitution, and anyone who does not reach the same conclusions he does must be doing it wrong. In truth, however, Scalia’s rhetoric far more often just exposes how simplistic his vision of the Constitution truly is. Consider a speech he gave earlier this week at a conservative think tank:

Scalia calls himself a ‘‘textualist’’ and, as he related to a few hundred people who came to buy his new book and hear him speak in Washington the other day, that means he applies the words in the Constitution as they were understood by the people who wrote and adopted them.

So Scalia parts company with former colleagues who have come to believe capital punishment is unconstitutional. The framers of the Constitution didn’t think so and neither does he.

‘‘The death penalty? Give me a break. It’s easy. Abortion? Absolutely easy. Nobody ever thought the Constitution prevented restrictions on abortion. Homosexual sodomy? Come on. For 200 years, it was criminal in every state,’’ Scalia said at the American Enterprise Institute.

This is the opposite of true, at least for someone who claims to take the text of the Constitution seriously. Take, for example, the death penalty. The Constitution prohibits “cruel and unusual punishments,” but it provides no other guidance on just how vicious a punishment must be to become “cruel” or how uncommon it must be to become “unusual.” Does the fact that the death penalty is increasingly rare in the United States meet the threshold of unconstitutionality? The Constitution doesn’t say.

Similarly, both abortion bans and bans on particular sex acts were held unconstitutional under the Fourteenth Amendment, the relevant part of which provides that “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” What are the “privileges and immunities of citizens?” How much “process” are people “due”? Why is it a denial of the “equal protection of the laws” for the government to refuse to hire someone because of their race or gender, but not because they performed poorly in college or have an unimpressive resume? The text of the Constitution does not answer these questions.

Scalia’s answer is that rights protected in the Constitution must be understood exactly as they were understood at the time they were ratified, but there’s also nothing in the document itself which suggests that “unusual” punishments are those that were unusual 200 years ago and not those that are unusual now, or that the amount of “process” that people are “due” is the amount that they were given in the 1860s. Indeed, if anything, the Constitution’s text suggests the opposite. The framers were perfectly capable of being very precise about which rights they wanted to protect when they wanted to be — just read the Third Amendment for an example. When they chose, for example, to use words whose scope would naturally change over time — something that is common today may be unusual 50 years from today — that suggests that they wanted the scope of those rights to match that natural process.

Of course, the Constitution doesn’t always use flowing or ambiguous language and when it speaks precisely judges are wrong to read their own preferences into language that does not support their views. Unfortunately, Scalia is hardly a model of textual loyalty in such instances. Nor is he particularly loyal to his notion that the words of the Constitution should keep the meaning the founding generation would have understood them to have. The Constitution gives Congress power to “regulate commerce … among the several states.” And one of the ratifiers of the Constitution explained in the very first decision to interpret these words that there is “no sort of trade” that the words “regulate Commerce” do not apply to and that the power to “regulate” something “implies in its nature full power over the thing to be regulated.” Yet Scalia voted to strike down the Affordable Care Act, a law that regulates trade in health care.

No one who takes the text of the Constitution seriously can reach the decision he reached in that case.

Conservative Justice Antonin Scalia spent much of the last Supreme Court term behaving more like a politician than a judge. His dissent from an opinion striking down much of Arizona’s anti-immigrant law SB 1070 included a rant against an irrelevant Obama Administration policy, and his questions during the Affordable Care Act were laced with conservative talking points more appropriate for Fox News than the Supreme Courtroom.

Yet, in an interview with Reuters yesterday, Scalia said he is “enraged” by suggestions that the Supreme Court has become “politicized.” Less than a minute later, however, Scalia launched into a partisan diatribe, this time claiming Democrats are less loyal to the Constitution than Republicans:

It really enrages me to hear people refer to [the Supreme Court] as a “politicized court.” Neither I nor any one of my colleagues votes a certain way because he or she likes this president or is a member of the party that that president belongs to. I could care less who the president is. They vote that way because that’s who they are. They were selected because of who they are.

So why should it be surprising that when you have a Democratic Party which has been trying for years to appoint people who approve of Roe v. Wade — which means people who are not originalists, who do not stick to the text, who believe in substantive due process or whatever — why should it be surprising when the Democrats have been doing that for 30 years, at least, and the Republicans have been doing the opposite for 30 years — swearing that they are going to appoint people who are not judicial activists, gonna, you know, hew to the text — why should it be surprising that you end up with a Court where the Democratic appointees are quite different from the Republican appointees?

To the extent that Scalia ever had the moral high ground to complain that someone isn’t following the text of the Constitution, he abandoned it completely when he voted to strike down the Affordable Care Act. The Constitution permits Congress to “regulate commerce . . . among the several states,” and the very first Supreme Court decision to interpret these words established that they give the United States “full power” over all forms of interstate trade. The Affordable Care Act regulates trade in health insurance and health care services throughout the country, and thus is clearly and obviously constitutional under the text of the Constitution.

So if Scalia is truly worried about judges who do not follow the text of the Constitution, he might want to look a lot closer to home than the Democratic Party. Moreover, if he is so “enraged” by allegations that his Court is politicized, he might want to consider not adding fuel to those allegations by suggesting that the Republican Party has a monopoly on loyalty to the text of the Constitution.

Late last week, Rep. Jeff Flake (R-AZ), who is currently campaigning for the U.S. Senate seat being vacated by retiring Sen. John Kyl (R-AZ), told a Republican gathering in Payson, Arizona that he supports abolishing the Seventeenth Amendment’s guarantee that voters elect their own senators. Prior to the Seventeenth Amendment’s ratification, the Constitution provided for senators to be selected by state legislatures, a system that was abandoned after it led to “rampant and blatant corruption, letting corporations and other moneyed interests effectively buy U.S. Senators.”

Flake, however, is not alone in his desire to make America less democratic. Indeed, at least two other GOP senate candidates, one GOP governor, one Republican senator and a Supreme Court justice all have indicated agreement with Flake’s ambition to return the Constitution to the halcyon days of the Nineteenth Century:

• Indiana Senate Candidate Richard Mourdock: Mourdock, who defeated incumbent Sen. Richard Lugar (R-IN) in a GOP primary after campaigning on a platform of refusing to compromise with Democrats, suggested at a campaign event last February that senate elections should be abolished because “the House of Representatives was there to represent the people. The Senate was there to represent the states.”
• Missouri Senate Candidate Rep. Todd Akin: Akin, the GOP nominee facing incumbent Sen. Claire McCaskill (D-MO), said during a GOP primary debate last may that “I don’t think the federal government should be doing a whole lot of things that it’s doing and it well may be that a repeal of the 17th Amendment might tend to pull that back.”
• Texas Gov. Rick Perry: Perry’s star has fallen considerably since his “oops” of a presidential campaign. Nevertheless, he remains the governor of America’s second largest state. He also believes that “The American people mistakenly empowered the federal government during a fit of populist rage in the early twentieth century by giving it an unlimited source of income (the Sixteenth Amendment) and by changing the way senators are elected (the Seventeenth Amendment).”
• Sen. Mike Lee: Lee believes that federal child labor laws, FEMA, food stamps, the FDA, Medicaid, income assistance for the poor, Medicare and Social Security violate the Constitution, so it is not surprising that he is also a seventeenther. Lee explained his opposition to his own election to the United States Senate in an interview with Fox Business.
• Justice Antonin Scalia: Scalia, who was widely criticized for his partisan rhetoric during the Supreme Court’s recent health care and immigration cases, also called for the Constitution to be changed to abolish senate elections — “I would change it back to what [the founders] wrote, in some respects. The 17th Amendment has changed things enormously.”

This morning on Fox News Sunday, Justice Antonin Scalia reiterated just how extremely his Constitutional originalism can be applied. Referring to the recent shooting in Aurora, CO, host Chris Wallace asked the Supreme Court Justice about gun control, and whether the Second Amendment allows for any limitations to gun rights. Scalia admitted there could be, such as “frighting” (carrying a big ax just to scare people), but they would still have to be determined with an 18th-Century perspective in mind. According to his originalism, if a weapon can be hand-held, though, it probably still falls under the right to “bear arms”:

WALLACE: What about… a weapon that can fire a hundred shots in a minute?

SCALIA: We’ll see. Obviously the Amendment does not apply to arms that cannot be hand-carried — it’s to keep and “bear,” so it doesn’t apply to cannons — but I suppose here are hand-held rocket launchers that can bring down airplanes, that will have to be decided.

WALLACE: How do you decide that if you’re a textualist?

SCALIA: Very carefully.

Watch it:

Scalia’s across-the-board defense of weapon-carrying laws is not new, having been at the heart of his majority opinion in District of Columbia v. Heller, which protected an individual’s right to possess firearms. However, his nonchalant suggestion that private citizens could legally carry rocket launchers so long as they’re “hand-held” suggests just how willing he is to protect an armed nation.

Such originalism is a dangerous distortion of 21st-Century reality. There is no conceivable way to apply the Founding Fathers’ understanding of a  ”well-regulated militia” armed with slow-to-load, hard-to-aim muskets to today’s weapon technology. Arguably, the full extent of alleged gunman James Holmes’ munitions could have easily decimated an entire brigade of musketeers before they’d even loaded their first ball.