Antonin Scalia and the Dilemma of Constitutional Originalism
- Author(s): Nelson Lund
- Date Posted: 2016
- Legal Studies #: LS 16-36
- Availability: Full text (most recent) on SSRN
Antonin Scalia has had a very significant and healthy impact on the way people talk about American constitutional law. Before he took his seat on the Supreme Court, it was barely respectable to treat the Constitution, understood to mean what it meant to those who wrote and ratified it, as the law. Constitutional law was - as every sophisticated lawyer, jurist, and academic understood - whatever the courts said it was, and the written document had been superseded in significant part by a “living constitution” that reflected the progressive political agenda of the modern left. Thanks largely to Justice Scalia’s forceful and eloquent voice, originalism is now so respectable that even those who seek to move the law ever farther to the left frequently find it prudent to pose as expositors of the Constitution’s original meaning. Scalia’s substantial effect on the terms of debate in constitutional law, however, is not likely to be matched by a comparable influence on the future of the law itself. His effort to alter the Supreme Court’s approach to constitutional adjudication faced serious obstacles that will continue to frustrate Justices - and observers like me - who share Scalia’s desire for a revival of respect for the written Constitution. Most obviously, political realities could easily prevent presidential appointments from producing a majority of like-minded Justices any time soon, if ever. There are, however, some more interesting obstacles that have deep historical roots. This essay explores those obstacles before considering two examples that suggest why Scalia’s originalism is unlikely to make a decisive contribution to the reformation in constitutional law that he sought.