originalism

is a radical notion of the law which logically suggests that scalia would have ruled that sen. Marco rubio (r-fla.) and supreme court justice clarence thomas could have been forced by racist jurisdictions to attend segregated schools when they were students.

If Scalia had served on the court when President Dwight Eisenhower was inaugurated, his 'dead' Constitution theory would have presumably led him to rule that Sen. Marco Rubio (R-Fla.) and Supreme Court Justice Clarence Thomas could have been forced by racist jurisdictions to attend segregated schools when they were students. If Scalia's 'dead' Constitution theory had prevailed in 1954, instead of being rejected by a unanimous Supreme Court, this evil could still exist today, because Brown v. Board of Education would have been decided differently.

is a radical notion of the law which logically suggests that scalia would have supported the denial of women's right to vote as constitutional.

If Scalia had served when Theodore Roosevelt was inaugurated as president, he would have presumably argued that if former vice presidential nominee Sarah Palin and Sen. Kelly Ayotte (R-N.H.) had lived then, they, along with all women, could be constitutionally denied the right to vote. It is ironic that so many others in those days, who were long ago discredited by the high court of history, agreed with Scalia's view, which is why it took the suffragettes to lead the fight to win the vote. Scalia's legal opposition today to the rights of women at work will be equally discredited by the high court of future historians.

is a radical notion of the law which, if adhered to during john marshall's court would have forced one to rule that slavery was constitutional and slaves are private property not guaranteed constitutional protection.

This radical notion of the law, which is held by many federal judges appointed by previous presidents, would turn back the clock against two hundred years of American experience and jurisprudence. If Scalia had served when John Marshall was as our nation's chief justice, his 'dead' Constitution theory would have presumably led to him rule that slavery was constitutionally sanctioned at that time. Scalia would have presumably ruled that the beating and whipping of slaves was constitutionally protected, because slaves were then regarded as the private property of slave owners, with no more rights than dogs or shoes, and not as American citizens guaranteed constitutional protection.

is opposed to the idea of a living constitution on the grounds that, if the constitution is believed to morph from age to age to say whatever the people would want it to say, then you eliminate the whole purpose of a constitution.

Scalia is the bete noir of the liberal legal establishment and the prime spokesman for the view that the meaning of the Constitution does not change over time. He defended his position in a 2008 NPR interview, saying, 'If you somehow adopt a philosophy that the Constitution itself is not static, but rather it morphs from age to age to say whatever it ought to say which is probably whatever the people would want it to say you eliminate the whole purpose of a Constitution. And that is essentially what the so-called living Constitution leaves you with.'

is partially incoherent in that privileging the original intent of the framers ignores that the framers themselves were in disagreement about constitutional issues before, during, and after the constitution's drafting.

Of course, had it really been the case that those who wrote the charter could best fathom its true meaning, one would have expected considerable agreement about constitutional matters among those former delegates in Philadelphia who participated in the first federal government. But Hamilton and Madison, the principal co-authors of 'The Federalist,' sparred savagely over the Constitution's provisions for years. Much in the manner of Republicans and Democrats today, Jeffersonians and Hamiltonians battled over exorbitant government debt, customs duties and excise taxes, and the federal aid to business recommended by Hamilton.

is sort of subspecies of textualism. It says that when you consult the text, you give it the meaning it had when it was adopted, not some later modern meaning.

CHRIS WALLACE: And we are delighted Justice Scalia has agreed to join us today to talk about it. Justice, welcome to 'Fox News Sunday.' JUSTICE SCALIA: Thank you very much, Mr. Wallace. Glad to be here. WALLACE: You -in your book, you explain your approach to judging, which is called textualism or originalism. What exactly is that' JUSTICE SCALIA: Originalism is sort of subspecies of textualism. Textualism means you are governed by the text. That's the only thing that is relevant to your decision, not whether the outcome is desirable, not whether legislative history says this or that. But the text of the statute. Originalism says that when you consult the text, you give it the meaning it had when it was adopted, not some later modern meaning. So -WALLACE: So, if it was the Constitution written in the 18th century, you try to find what those words meant in the 18th century. JUSTICE SCALIA: Exactly, the best example being the death penalty. I've sat with three colleagues who thought it was unconstitutional, but it's absolutely clear that the American people never voted to proscribe the death penalty. They adopted a cruel and unusual punishment clause at the time when every state had the death penalty and every state continued to have it. Nobody thought that the Eighth Amendment prohibited it.

The theory of law based on an allegedly dead Constitution often includes a denial of precedent and misrepresentation of fact analogous to the denial of the science and evidence of climate change. Sadly, misguided politicians can lose elections, but federal judges are granted tenure for life.

is the belief that the constitution should be interpreted solely through the lens of what was written when it was written, meaning that because abortion and gay marriage rights were not present at the time of the writing of the constitution, arguments to protect them cannot be used to expand the meaning of the constitution to address modern realities.

His theory is called 'originalism' a belief that the Constitution should be interpreted solely through the lens of what was written when it was written. Scalai's theory of originalism has implications for you, me and modern society. One example is that since abortion and gay marriage rights were not present at the time of the writing of the Constitution arguments to protect them cannot be used to expand the meaning of the Constitution to address modern realities. Originalism never quite found footing with other Justices. Scalia was not a consensus builder and often wrote scathing dissents. Not surprisingly, his fundamentalist position on the Constitution won him friends, foes, admirers, detractors and devotees.

originalism, n.All

originalism