Much ado is being made about this statement from Antonin Scalia, and I think that's because people never really understood that his interpretation of the Constitution, at least in his mind, isn't based on the text itself in a vacuum, but on what he believes that authors thought they were writing. His objection to the "living Constitution" isn't that the words are being interpreted by silly humans, but that the words are being interpreted by today's silly humans. Yesterday's are just fine.
In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don't think anybody would have thought that equal protection applied to sex discrimination, or certainly not to sexual orientation. So does that mean that we've gone off in error by applying the 14th Amendment to both?
Yes, yes. Sorry, to tell you that. ... But, you know, if indeed the current society has come to different views, that's fine. You do not need the Constitution to reflect the wishes of the current society. Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn't. Nobody ever thought that that's what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don't need a constitution to keep things up-to-date. All you need is a legislature and a ballot box. You don't like the death penalty anymore, that's fine. You want a right to abortion? There's nothing in the Constitution about that. But that doesn't mean you cannot prohibit it. Persuade your fellow citizens it's a good idea and pass a law. That's what democracy is all about. It's not about nine superannuated judges who have been there too long, imposing these demands on society.
Here's what the Equal Protection Clause of the 14th Amendment actually says:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
I'm glad he said that to California Lawyer and maybe it'll clear a few things up.
Scalia's interpretations are generally the ones political conservatives prefer, and the way they usually defend them is by saying that they're the "literal" interpretation (in much the same way that Christian conservatives say they use a "literal" interpretation of the Bible). But we have to separate those two statements, because Scalia doesn't actually say that he's "literally" interpreting the Constitution, just activists on the right. In fact, it's something he's outright rejected himself:
I am one of a small number of judges, small number of anybody -- judges, professors, lawyers -- who are known as originalists. Our manner of interpreting the Constitution is to begin with the text, and to give that text the meaning that it bore when it was adopted by the people. I'm not a "strict constructionist," despite the introduction. I don't like the term "strict construction." I do not think the Constitution, or any text should be interpreted either strictly or sloppily; it should be interpreted reasonably. Many of my interpretations do not deserve the description "strict." I do believe, however, that you give the text the meaning it had when it was adopted.
This raises a few questions, like how he could know what people were thinking when they voted for an amendment, why he's assuming every one of the millions of people who vote (indirectly, even) for these things thought the same thing, if the fact that many people who lived in the US at the time weren't allowed to vote changes anything.... But he's been fairly consistent, as far as I can tell, in opposing the faux "literal" justification for his interpretations of the Constitution.
Which makes the argument a lot easier. Everyone who know how the law works cops to interpreting the document through someone's eyes. Liberals say they're interpreting it through the prism of today's society; conservatives through the view of a society that no longer exists.
Scalia makes it clear that a Constitution isn't worth much if we just interpret it as the majority wills at any given moment, since then by definition any law would be by definition constitutional, and I agree. It's just that liberals think that the Constitution should hold us up to the highest aspirations of its writers; conservatives think it should hold us down to their basest prejudices and the results of their realpolitik.