Michael Lewyn (Touro College – Jacob D. Fuchsberg Law Center; University of Pittsburgh – School of Law) has posted When Scalia Wasn't Such an Originalist (32 Touro L. Rev. 747 (2016)) on SSRN. Here is the abstract:
Although Justice Scalia generally described himself as an originalist, his opinion in Lucas v. South Carolina Coastal Council rejected originalist arguments. Why? This article suggests that pre-Lucas precedent and the ambiguity of the historical record might justify his methodology.
A brief and — in my view — effective assessment. Where Scalia is criticized for departing from originalism, is it often the case that he was following precedent.
Posted at 6:35 AM