Hey, I didn’t say so.  Scalia did.  In this Kansas City Star, Supreme Court Justice Antonin Scalia (the second most senior Justice, by the way) reiterates his “living Constitution is crap” argument.

The Constitution is not a living organism,” Scalia said. “It’s a legal document that says some things and doesn’t say others.”

He drew applause when he acknowledged to the crowd that he was a social conservative but then took pains to describe how his method of constitutional interpretation can sometimes lead him to decisions opposite from his political convictions.

“I ought to be the pinup of the criminal defense bar because I’ve written opinions to defend the rights of the accused,” Scalia said.

I agree.  I’m just waiting for the poster of him in a swimsuit.

I continually find it ironic that Scalia, as much as his speeches and views tend to make him appear helplessly dogmatic in his approach, does somehow manage to pen decisions like Crawford that are both earth-shattering from a legal perspective and definitively helpful from the defense point of view.

But his basic argument, that the Constitution is just a “piece of paper” and not a living document, remains misguided in my opinion.  When written, our founding fathers knew and understood that times would change, innovations would happen and this piece of paper they’ve approved would have to apply to changes that could not possibly be imagined in 1789.  I refuse to accept that they were so foolish and parochial as to believe that they had covered everything to the letter at the time, and that nothing new under the sun would happen that would require our Constitution to provide a “spirit”, a principled approach, to guide courts in the future.

There are flaws, however, in how my living Constitution approach has born out.  It provides a bit too much flexibility to those inclined to use rhetorical tricks and bad logic to undermine the principles embodied in the words.  It’s happened too often over the centuries that exceptions upon exceptions have swallowed the rule of law whole. 

Among the issues where this smacks me in the fact, foremost is the 4th Amendment.  As I argue to courts “the Rule,” that no unreasonable searches and seizures “technicality”, I realize that the mindset is so frozen by pigeonholing cases into exceptions, like the automobile exception, that it’s nearly impossible to get the court to consider why one is a rule and the other an exception, and why the exception exists at all. 

Even with Crawford, prohibiting admission of hearsay “testimonial” statements under the 3,256 hearsay exceptions developed to ensure that no damning hearsay statement go unadmitted, every judge below SCOTUS has been busily thinking how they can get around the decision and get back to business as usual.

I hate it as much as the next criminal defense lawyer that Justice Scalia has become the babe of our bar.  But sadly, he’s right.  He has become the most reliable proponent of hard adherence to basic rules that were designed to protect the rights of defendants.

But then, he’s still got that Jack Bauer,  torture hangup that makes him a hard man to love.