THE TEXT PROVIDES FOR ONE LEGISLATIVE BRANCH, NOT TWO:

Antonin Scalia Unplugged: Wants to Kill 'Living' Constitution (ABC Note. 10/06/11)

Justice Antonin Scalia couldn't help himself.

Sitting on the dais at the Newseum, a Washington, D.C., museum dedicated to the value of a free press, he knew he probably shouldn't bring up the landmark libel case New York Times v. Sullivan.

The 1964 Supreme Court defined "actual malice" as the standard for determining libel cases involving public figures.  The case forever changed libel law.  And, as Scalia has said before, he believes it was wrongly decided.

At this morning's session, Scalia said the decision was the product of the "living" constitutionalists who adopt the values of the framers to the evolving world. Scalia rejects that line of thinking. "I look to the words of the Constitution," he said, "but I ask what did those words mean to the society that adopted them."

He said that in NYT v. Sullivan, the court mistakenly thought that  "in modern society, it would be a good idea that the press could say a lot of things ... without worry."

Scalia reiterated that if it was such a good idea, then it "should have been adopted by the people" in the legislature, not in the courts.

Dripping with disdain, Scalia said, "the 'living' constitutionalist  feel free to say, 'Well, it's  a new day, we can have new rules.'"

Posted by oj at October 7, 2011 6:40 AM
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