Scalia is saying two things: that ideas not mentioned at all in the Constitution AS WRITTEN AT THIS MOMENT should be handled by legislation AND that matters stated broadly in the Constitution should be particularized at the state and federal levels by the will of the majority as enacted by their legislative representatives.

The unexpressed third principle has already been mentioned by McGehee--if you don't like what the Constitution says on a given topic at this moment, amend it in accordance to the legislative process already in place, not by judicial fiat.

And, GP, the 13th Amendment rather clearly prohibits slavery. It took an amendment (and, indeed, a war) to get there since the original text rather clearly protected slavery. (The 3/5 Compromise and all that.)

Isn't it also based on a fantasy? Can we actually get into the heads of the Founding Fathers? We can read books, but it won't let us get into their really meaning. Further, the Constitution was written within a context (social, political, scientific, etc.), which is far different from the context in which Scalia reads it today. How then is it that anyone reading it today isn't reading into it the context of modern life in a way that doesn't automatically violate the strictures of originalism. Freedom meant something very different in 1791 than it does today. But without a time machine, there is really no way to know with the precision required by Scalia's job to know what the Founding Fathers meant. And why are we protecting 1791's version of freedom if that is wholly different than what most would agree is freedom today?

It is not that I am saying it is an inadmirable goal for Constitutional judges to try to stick to the text and not wildly read into it something that clearly is not there. But every Constitutional case has to do this by necessity.

And why do we care that much about the context in 1791? The text clearly was not intended to prohibit ownership of black slaves. Yet what if blacks were to become the majority and decide they wanted to own white slaves - would Scalia view this as Constitutional?

Congress passes the amendment, then 2/3's of the states have to ratify it, in order for it to become part of the constitution, I would assume that you could refer to those additional amendments with an originalists viewpoint though to when they were added.

For instance, if Congress wanted to write an admenment that defined capital punishment as cruel and unusual, and it passed and was ratified, then it would become part of constitutional law, verses the Supremes deciding that because of revolving standards, it is cruel and unusual based on the 8th amendment.

That is the difference.

By ratifying the 21st Amendment, in accordance with the written rules in the Constitution for amending it. What's your point?

Kent Hughes:
Mr. Justice Scalia, what do you think has caused the emergence of the Living Constitution doctrine? What were the forces in society, were there pressure...

The alternative is a Constitution that has no meaning except the desires of a majority of the Supreme Court at any particular instant.

Heck, we were successful in overturning the 18th amendment to get back to a more "originalist" position. Let's get rid of the rest of them. They certainly are superfluous and have resulted in the kind of "massive disruption of the...social order" that Scalia decried in his dissent to the Lawrence case.