Theorist

Abstract

This chapter discusses Justice Antonin Scalia’s jurisprudence and his advocacy of what he called “public meaning” originalism in contrast to Robert Bork’s “original intent” originalism. The U.S. Constitution was properly construed, Scalia maintained, only by focusing on the text of the document itself and, where necessary, on the public writings of the Founders and well-established national “traditions.” Scalia rejected all other interpretive theories and lumped them together as “nonoriginalist” types of subjective and antidemocratic theories of “living” constitutionalism. This chapter examines the elements and assumptions behind his jurisprudence and offers a severe critique of both. It summarizes and draws on an extensive literature undermining the claims of his constitutional “originalism and concludes that his jurisprudential ideas were deeply flawed for a variety of reasons.