"That's the argument of flexibility and it goes something like this: The Constitution is over 200 years old and societies change. It has to change with society, like a living organism, or it will become brittle and break."

"But you would have to be an idiot to believe that," Scalia said. "The Constitution is not a living organism, it is a legal document. It says something and doesn't say other things."

I'm growing a little sceptical of "strict constructionalism." I like strict constructionalism, I just don't think these federalist guys are strict constructionalists.

To begin with, the words "cruel and unusual" do not mean the same thing that they meant 200 years ago. But it goes beyond that. The 14th amendment changed the nature of the Constitution, and amendments which were written as restrictions on the federal government became individual rights. In order to accept the "strict constructionalist" view one must claim that the 9th amendment is a "garnish" that has no real legal force or meaning. I think thats clearly insane and hypocritical. The Constituion established a very limited federal government. The 14th amendment made the state governments limited too. Liberals and Conservatives who wish to use government power in new ways to control what people can do ought to amend the consitution to do it.

Honestly, I think the government likes the tension that this has wrought. They like having a second amendment and gun laws at the same time. It allows them to regulate while having strong pressures against regulation. They like having a right to an abortion while having this dialog about whether or not its real. It creates a legal safe ground without creating an ethical one. Its an environment where abortion can be simultaneously legal and immoral. If you reversed Row people would be hurt. If you accepted Row people would be more comfortable with getting actual abortions. There is wisdom in the way these extremes have been set up against eachother, but it makes our legal system a very delicate balance that constantly threatens to implode.

Scalia Dismisses 'Living Constitution' - Yahoo! News