ANTONIN SCALIA ORIGINALISM THE LESSER EVIL PDF

Supreme CourtJustice Antonin Scalia on Monday touted his approach to interpreting the federal Constitution that focuses on the original intent of the Founding Fathers. Scalia, a former University of Chicago law professor, called the "originalism" method "the lesser evil. The question is whether it's better than everything else," said Scalia, who addressed about people at the U. Law School. Originalism was behind his reasoning in a Supreme Court case that upheld the individual's right to possess a firearm, he said. Scalia wrote the majority opinion for the case and argued that the Constitution's specific language referred to possessing a firearm as a pre-existing right.

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Randy E. 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, the essay explains 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, the author contends 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. The essay then provides a summary of why the courts ought to adhere to original public meaning originalism, why this form of originalism is preferable to the principal alternative—which the author calls the underlying principles approach—and why originalism, properly understood, does not lead to the types of grossly objectionable results that lead Justice Scalia to be faint of heart.

Barnett, Randy E. Constitutional Law Commons , Judges Commons. Advanced Search. Privacy Copyright. Skip to main content.

Authors Randy E. Publication Citation 75 U. Enter search terms:. Digital Commons.

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Randy E. 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, the essay explains 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, the author contends 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.

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Justice Scalia Is More Conservative Than You Think, And Further To The Right Than He’s Ever Been

Words have meaning, Scalia correctly asserted, and the words of the Constitution must be read as they would have been understood at the time they were enacted. This way, Scalia assured, unelected judges will not overstep their proper role in a democracy. If judges can change the meaning of the Constitution, their power is truly limitless. Yet Scalia rejected this evidence to join an angry dissent labeling Obamacare unconstitutional. Moreover, as Scalia conceded in his lecture, it is not always easy to determine what the framing generation though a particular constitutional provision meant.

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Scalia defends his originalist view at U. of C.

In this well-known article, Justice Scalia explains and defends originalism, which has become one of the most controversial approaches to statutory interpretation in the US. Please log in to set a read status. Setting a reading intention helps you organise your reading. You can filter on reading intentions from the list , as well as view them within your profile.

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