Monday, February 15, 2016

The tragedy of Antonin Scalia.

Eric Posner wrote a great piece, The tragedy of Antonin Scalia. "He thought he could remove politics from the Supreme Court, but he only made things worse."

Scalia refused to acknowledge that originalism does not enable justices to decide cases neutrally. If they choose to adopt this methodology, and manage to figure out a way to make it constrain them, they are committed to enforcing mostly 18th-century values—which are, by definition, conservative.

In fact, the historical sources are rarely clear, and foundational questions about how originalism is supposed to proceed—including how much weight (if any) should be given to post-founding judicial precedents that deviate from the original understanding, and how broadly constitutional principles like “due process” and “equal protection” should be understood—are irresolvable. One of the original originalists—Supreme Court Justice Hugo Black—was a stalwart liberal. A liberal Yale law professor has mischievously proclaimed himself an originalist and shown how originalism can lead to liberal outcomes. Scalia’s interpretation of originalist sources has been frequently criticized, and in notable instances when he could not bend them to his will, he simply ignored them. His belief that campaign finance laws and commercial speech regulations violated the First Amendment would have surprised the founders, for example.

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