David E. Weisberg (Independent) has posted Justice Scalia and Originalism: A Brilliant Jurist and an Irreparably Flawed Theory on SSRN. Here is the abstract:
The late Justice Scalia’s theory of constitutional interpretation, “orginal public meaning” originalism, is irreparably flawed and therefore must be discarded. The exposition proceeds in three parts: what the theory is, how it is flawed, and how judges and scholars came to embrace an irreparably flawed theory.
Part One lays out the tenets of Justice Scalia’s originalism.
Part Two demonstrates, in three sub-parts, that originalism carries within itself two distinct irreparable flaws, and the appropriate conclusion is drawn. The first sub-part demonstrates that, as a matter of logic, it is impossible to apply the theory as it was designed, because application of the theory lures the originalist into an infinite regress that bars him or her from ever finally ascertaining the so-called “original” meaning of any operative word in the Constitution. The second sub-part demonstrates that the premise of the theory — that all the operative words in the Constitution have, or might have, original meanings that differ from their current meanings — is, as a factual matter, false. The third sub-part draws the inevitable conclusion: the meaning the Constitution had in 1788, or 1791, or any subsequent year is, as a general matter, identically the same as the meaning it has today, with certain very limited exceptions.
Part Three explains how originalists came to accept the false premise that underlies their theory: they confused the definitions of words and the meanings of phrases in the Constitution with the things to which those words and phrases referred at the time of adoption of the Constitution. To illustrate how this kind of confusion leads to clear error, I analyze Justice Scalia’s views on the Eighth Amendment prohibition against cruel and unusual punishments and how the Amendment would apply to a hypothetical re-imposition of flogging as punishment for crime.
Posted at 6:34 AM