147. Dead letters

In this year's Davis v. Washington, Justice Scalia rejected the originalist approach to constitutional interpretation, despite his frequent assertions that he is an originalist, on the ground that "[r]estricting the Confrontation Clause to the precise forms against which it was originally directed is a recipe for its extinction."  (See post 131 and post 127.)

That phrase "recipe for its extinction" is not, one imagines, a reference to Fannie Farmer putting passenger pigeons in a pie.  Presumably Justice Scalia was using "recipe" in the meaning of "[a] formula for or means to a desired end".   So if he meant what he wrote, he meant the dissenters  consciously intended to produce the extinction of the confrontation clause.  Do you think he believed that?  I don't - I think he just liked the phrase and didn't bother to consider what it meant.

If that seems too harsh an assessment, consider the metaphorical flourish at the end of his not-so-bon mot.   Something becomes extinct when it is "[n]o more existing or living".  And so - if he meant what he said - Scalia was telling us that his competing recipe was a formula for keeping the confrontation clause alive.  Considering the abuse Scalia has heaped upon the idea of "a living Constitution", I think it's a pretty safe bet he wasn't in intellectual top form when he signed off on his clerk's ...  I mean, when he wrote that.

But what's so bad about parts of the Constitution becoming dead letters?  Plenty of parts of the Constitution are "extinct."  Look at the third amendment:  "No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law."  Not much vitality left in that one. 

Should the Court have made an effort to revitalize it, for example by construing it to mean a citizen can withhold taxes that go to pay the expense of maintaining a military?  Or should we be glad that the particular governmental abuse to which it was directed has been eliminated?

Well, the latter, of course.  But if the confrontation clause as originally enacted would become "extinct" if confined to its original meaning, it means only that that governmental abuse, too, has been eliminated.  If another abuse has meanwhile arisen, there's a mechanism for amending the Constitution.   It's called article V.

But then, article V is pretty much a dead letter.  The meaning of our Constitution changes frequently, but not through the amendment process.  It changes when any five justices of the Supreme Court decide to change it.

What are some other dead twigs in the constitutional tree?  How about article III, section 1, saying that federal judges "hold their offices during good behaviour"?  On the face of it, good behavior is different from - and a good deal less exacting than - the "high crimes and misdemeanor" standard that applies to Presidents.   Which makes sense, given that the President is elected and federal judges aren't, and few people would even notice if half our judges were replaced tomorrow.  But "good behaviour" has been a dead letter for two centuries already. 

Then there's article IV, section 4: "The United States shall guarantee to every state in this union, a republican form of government".   Does that mean anything at all?  Did the one-party states of the Solid South have a republican form of government?  How about the Kansas of 2006, where budget decisions are being made by the supreme court, not by elected representatives of the people?  How about the Rhode Island of 1845, still operating under a pre-Revolutionary royal charter?  It doesn't matter whether those are/were republican forms of government, because the Constitution's guarantee means nothing.

The ninth and tenth amendments to the Constitution have never meant anything, and the Supreme Court itself held that the privileges and immunities clause of the 14th amendment meant next to nothing.  The extinction of various clauses of the Constitution is nothing new, or even out of the ordinary.  It's been a dying Constitution since long before anyone coined the phrase "living Constitution."