Justice Antonin Scalia made a rare appearance on 60 Minutes Sunday night, the subject of an interview by an unusually gushing Leslie Stahl. Scalia generally avoids cameras, but he's hawking a new book about advocacy for lawyers. In the course of the segment viewers got a good look at Scalia's dangerous constitutional jurisprudence, something he calls "originalism." In Scalia's America, we don't have a "living Constitution," we have a Constitution that is fixed by the words as the Founders understood them back in the late 1700s, when the Constitution was written and ratified.
How would this view of our Constitution work out for most Americans? Well, as Justice Ruth Bader Ginsburg said to Leslie Stahl, "We the People" - the opening words of the Constitution - did not apply to women back in the 18th Century, nor did it apply to African-Americans.
Scalia denied being against "progress," but his claim that making progress in a democracy (he cited abortion and gay equality as examples) should be up to legislatures would mean abdicating the judiciary's obligation to apply the Constitution's guarantees of liberty, due process, and equal protection to everyone. Minorities, or those with minority views, would always be vulnerable to the tyranny of the majority, begging for basic rights.
As for torture, Justice Scalia dismissed the suggestion that it violated the constitutional bar to cruel and unusual punishment because torturing someone to extract information is not "punishment."
Scalia also claimed that "the Constitution is not mean to facilitate change. The Constitution is meant to impede change, to make it difficult to change." In fact, the Constitution is not about change at all. In large measure, the Constitution is an articulation of fundamental principles, a declaration of rights, and a set of restrictions on governmental power.
Scalia's view of our founding document as an impediment to progress is pretty scary. The genius of our Constitution is that it is not fixed in time, but that its general principles have proven equally applicable to an America in the age of the horse and buggy and to a country that has seen humans stand on the moon.
The new president elected this November will likely have the opportunity to fill one or more vacancies on the Supreme Court, with the consent of the Senate. Scalia's 60 Minutes interview has helped underscore just how high the stakes are when Americans go to the polls.