Justice Scalia at odds with President Lincoln over the Constitution?

Updated
U.S. Supreme Court Justice Antonin Scalia at a Northern Virginia Technology Council event in McLean, Virginia on December 13, 2006. (File photo by Alex Wong...
U.S. Supreme Court Justice Antonin Scalia at a Northern Virginia Technology Council event in McLean, Virginia on December 13, 2006. (File photo by Alex Wong...
File photo by Alexander Gardner/AP/Library of Congress

Updated: Feb. 1, 2013, 6:56pm ET: Supreme Court Justice Antonin Scalia, arguably the high court’s most conservative member, has again grabbed headlines for remarks made while speaking to a group of students. On Monday, Justice Scalia told students at Southern Methodist University in Dallas, Texas, “It’s not a living document. It’s dead, dead, dead.”

Scalia was responding to SMU law professor Bryan A. Garner, who has co-authored two books with Justice Scalia, their latest being Reading Law: The Interpretation of Legal Text. Professor Garner told the crowd that the Constitution was a “living document.”

This is an issue that constitutional experts have debated for years and years, and one historical figure that could shed some light on the issue is the nation’s first Republican president.

In his first inaugural address, Abraham Lincoln stated that the nation’s organic law could not possibly have answered our every governing question (emphasis mine):

no organic law can ever be framed with a provision specifically applicable to every question which may occur in practical administration. No foresight can anticipate nor any document of reasonable length contain express provisions for all possible questions. Shall fugitives from labor be surrendered by national or by State authority? The Constitution does not expressly say. May Congress prohibit slavery in the Territories? The Constitution does not expressly say. Must Congress protect slavery in the Territories? The Constitution does not expressly say.


A previous version of this post incorrectly attached additional meaning to the phrase “organic law” stating it was likely evidence that Lincoln was implying that America’s “organic law”, or the Constitution, was a “living” document. Instead, constitutional expert and New York Law School Professor R. B. Bernstein explains, ”Lincoln used the term interchangeably with Constitution, that’s all that it means.”

But as to what Lincoln likely meant when he said no document can “express provisions for all possible questions,” constitutional expert and Fordham University Law Professor Saul Cornell speculates (again, emphasis mine):

“Lincoln seems to be fusing the concept of law needing to be dynamic with the idea that certain aspects of law are intrinsic to the nature of  government – so there is an element of a living Constitution in this idea, but there is also an idea that the very nature of government implies certain powers that are inherent in the nature of government.”


Suffice it to say, whether the Constitution is a document that is “dead, dead, dead” or “organic” is a question likely to be debated for years and years to come.

Justice Scalia at odds with President Lincoln over the Constitution?

Updated