Home Law Featured Blog: Scalia’s idea of originalism was rooted in an ancient past

Featured Blog: Scalia’s idea of originalism was rooted in an ancient past

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Supreme Court Justice Antonin Scalia was a firebrand in the sense that he chose not to toe the line in terms of modern political thought. He spewed vitriolic rhetoric, the type of which has held Americans back for years. He managed to do both at the same time. His conservatism eschewed modern thought, while certain social philosophies of his have a stake rooted in the past.

Scalia was practically the originator and main proponent of modern “originalism,” a concept that mandates strict adherence to some mystical claim of absolute original intent from the framers of the Constitution. In simpler terms, “the founders said it was so in the Constitution, and it shall be done.” The treatment of the Constitution as a static document was one of Scalia’s notable practices, as long as the terms of the case at hand stuck to his own ideals and morals.

This is not an apologist or an admirer’s tribute to Scalia. This is a critical look at the rhetoric that recently deceased Supreme Court Justice Antonin Scalia leaves behind about his philosophy of originalism.

Sarcastic. Biting. Backwards. Those are just a few of the ways his writing can be described. Here are some samples of the many biting lines uttered or written by Scalia.

“The Court today continues its quixotic quest to right all wrongs and repair all imperfections through the Constitution. Alas, the quest cannot succeed.” That’s a line from Scalia’s dissent from Caperton v. A.T. Massey Coal Co (2009).

“As long as the judges tinker with the Constitution to ‘do what people want’ instead of what the document actually commands, politicians who pick and confirm new federal judges will naturally want only those who agree with them politically,” Scalia said in remarks before the Philadelphia Bar Association, April 29, 2004.  

“The Court must be living in another world. Day by day, case by case, it is busy designing a Constitution for a country I do not recognize,” Scalia said in his dissenting opinion in Wabaunsee County, KS v. Umbehr (1996).

“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 … This is such a minority position in modern academia and in modern legal circles that on occasion I’m asked when I’ve given a talk like this a question from the back of the room — ‘Justice Scalia, when did you first become an originalist?’ — as though it is some kind of weird affliction that seizes some people — ‘When did you first start eating human flesh?’” He said this in an address to the Woodrow Wilson Center, March 14th, 2005.

“Seldom has an opinion of this Court rested so obviously upon nothing but the personal views of its members.” Another Scalia-written opinion. This time it was about executing those with mental illness in Atkins v. Virginia.

His originalism was a flawed understanding of the Constitution, one that he strictly adhered to until he had a deep-seated (and often hateful or ill-informed) opinion on a matter.

Scalia was no doubt intelligent. He was highly intelligent, well-spoken and he maintained a personality that made every legal journalist savor the opportunity to write about him from the time he began on the court in 1986 to his death. He had nearly 30 years of “service.”

History will tell whether his originalism served anyone. Regardless, the philosophy will continue in some schools of political and legal thought, but it is probably best left in the past.


Here are three links with more information about his rhetoric and writing style.

The Washington Post’s Zachary Goldfarb lays out some of the more snarky and sarcastic lines from Scalia.  

Fox News has some of Scalia’s more memorable quotes and lines from his dissents.

Some choice dissents from Scalia that The New Yorker’s Nadine Zylberberg laid out.


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