Preamble Salad: Easier to Swallow Than Scalia's Unchanging Living Constitution

On Scalia's account, imposing our current understandings of moral principles onto the Bill of Rights often constitutes a "reduction of [our] rights" as they were originally understood (43). He then claims that the "pragmatic" argument which advocates "an evolutionary approach" is not persuasive. On his view, it would be more convincing if the results of this "evolution" primarily involved "the elimination of restrictions upon democratic government. But just the opposite is true...the evolving Constitution has imposed a vast array of new...inflexibilities upon administrative, judicial, and legislative actions" (41). He then tells horror stories about a future time where the Eight Amendment precludes capital punishment, and suicide is protected by the 14th.

Yet it seems as if Scalia is constructing a nightmare scenario which is only scary to him -- at least in the way the "evolution" has played out thus far. Many of the "inflexibilities" he lists not only appear to be desirable, but seem to actually enable the exercise of our most valued, fundamental liberties. For example, prohibiting the use of evidence obtained by an unlawful search seems to square perfectly with the Fourth Amendment's provision regarding probable cause; the promise of security in one's effects is part of what it means to be truly free, and was valued immensely by early Americans. Somewhat more controversially, the fact that property requirements can no longer be a condition for voting seems to align perfectly with our historic attachment to civic engagement (at least from Dworkin's semantic intent point of view -- we wanted an engaged citizenry, and property requirements undercut that). On this second example, I concede that state governments often had property requirements for voting, but this was never codified in our Constitution.

In essense, Scalia describes the Living Constitution as preventing social change, but the very examples he points to seem to undercut this idea entirely -- while I have pointed out the two that best serve my purposes, there are a host of others that he doesn't list (42). These constraints might be undesirable to libertarians/states' rights Republicans from an ideological point of view, but not to our polity as a whole -- we don't all detest restrictions merely because they're restrictions.

If you ask me, Dworkin's Preamble Salad seems much more consistent with the framers' vision of our rights. It makes perfect sense that they believed "a combination of concrete and abstract rights [the salad] would best secure the...goals they set out in the preamble" (124). As Dworkin writes, they "knew how to be concrete when they intended to be" (121). The "majestic abstraction" of the Constitution's "great clauses" should naturally be aimed towards something, and what better target than the text which set out the purpose of our Union in the first place?