SCALIA'S INFIDELITY:
A CRITIQUE OF "FAINT-HEARTED" ORIGINALISM

Randy E. Barnett

Boston University School of Law Working Paper 06-01

Abstract
In this essay, based on the 2006 William Howard Traft lecture, I critically evaluate Justice Antonin Scalia's famous and influencial 1988 Taft Lecture, entitled "Originalism: The Lessor Evil." In his lecture, Justice Scalia began the now-widely-accepted shift from basing constitutional interpretation on the intent of the framers to relying instead on the original public meaning of the text. At the same time, I explain how Justice Scalia allows himself three ways to escape originalist results that he finds to be objectionable: (1) when the text is insufficiently rule-like, (2) when precedent has deviated from original meaning and (3) (when the first two justifications are unavailing) just ignore originalism to avoid sufficiently objectionable results. While Justice Scalia describes his approach as "faint-hearted originalism," I contend that he is not really an originalist at all as evidenced by this lecture and also by his stances as a justice in several important cases. This leaves Justice Thomas as the only justice who seems at all bound by originalist conclusions with which he may disagree. I then summarize why the courts ought to adhere to original public meaning originalism, why this form of originalism is preferable to the principal alternative--which I call the "underlying principles" approach--and why originalism, properly understood, does not lead to the types of grossly objectionable results that leads Justice Scalia to be faint of heart.

 


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Randy E. Barnett Contact Information

rbarnett@gmail.com
Webpage: http://randybarnett.com/
No longer at Boston University School of Law, now at: Georgetown University Law Center


Presentation and Publication Information:

89 Minnesota Law Review 1500 (2005)


SSRN

 

 


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