“The very name Living Constitution is misleading. It conveys the impression of a system designed to be flexible and adaptable. This quality is touted by the advocates of the system, who speak metaphorically of the Constitution as a “living organism” that must grow with society or else “become brittle and snap.” It is not a living organism—any more than any other legal prescription is. And the notion that the advocates of the Living Constitution want to bring us flexibility and openness to change is a fraud and a delusion. All one needs for flexibility and openness to change is a ballot box and a legislature. The advocates of the Living Constitution want to bring us what constitutions are designed to impart: rigidity and difficulty of change. The originalists’ Constitution produces a flexible and adaptable political system. Do the people want the death penalty? The Constitution neither requires nor forbids it, so they can impose or abolish it, as they wish. And they can change their mind—abolishing it and then reinstating it when the incidence of murder increases. When, however, Living Constitutionalists read a prohibition of the death penalty into the Constitution—and no fewer than four Supreme Court Justices who served during the tenure of your judicial coauthor would have done so—all flexibility is at an end. It would thereafter be of no use debating the merits of the death penalty, just as it is of no use debating the merits of prohibiting abortion. The subject has simply been eliminated from the arena of democratic choice.(24) And that is not, we reemphasize, an accidental consequence of the Living Constitution: It is the whole purpose that this fictitious construct is designed to serve. Persuading five Justices is so much easier than persuading Congress or 50 state legislatures—and what the Justices enshrine in the Constitution lasts forever. In practice, the Living Constitution would better be called the Dead Democracy.”
From Chapter 70: The false notion that the Living Constitution is an exception to the rule that legal texts must be given the meaning they bore when adopted.
Antonin Scalia and Bryan A. Garner, Reading Law: The Interpretation of Legal Texts, 410 (2012).