Stone and Other Scholars Weigh in on "How Antonin Scalia Changed America"

How Antonin Scalia Changed America

‘Scalia had many great victories in his 30 years as a justice, but the bold effort to reinvent constitutional interpretation was not one of them’

Geoffrey R. Stone, Edward H. Levi Distinguished Service Professor of Law at The University of Chicago

Scalia’s primary contribution to the theory of constitutional interpretation was his fervent commitment to the principle of originalism. First popularized in the early 1980s, originalism was an effort to solve a conundrum. Scalia and other proponents of originalism were sharply critical of what they saw as the Warren Court’s excesses. In their view, the liberal justices of that era simply imposed their own social and ideological preferences on the nation in the guise of constitutional law.

One way to avoid that perceived abuse was for judges to take a consistently deferential approach to the judgments of the elected branches of government. But Scalia and his fellow proponents of originalism recognized that such an across-the-board commitment to judicial restraint was inconsistent with the understanding of the Framers of our Constitution, who clearly anticipated that judges to play an important role in enforcing constitutional guarantees.

The challenge was thus to figure out when judges should be deferential and when they should be more aggressive in their application of the Constitution. Scalia, Robert Bork and other originalists concluded that the solution to the conundrum was for judges to exercise restraint unless the “original meaning” of the text mandated a more activist approach.

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