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Contentions

Scalia’s Contribution

In one of his silliest columns in years, E. J. Dionne says that the majority in Heller abandoned originalism and precedent to reach a decision to please the Right. Yeah, except for the fact that the majority opinion is a tour de force of originalist research and reasoning. Randy Barnett explains:

Justice Scalia’s opinion is the finest example of what is now called “original public meaning” jurisprudence ever adopted by the Supreme Court. This approach stands in sharp contrast to Justice John Paul Stevens’s dissenting opinion that largely focused on “original intent” – the method that many historians employ to explain away the text of the Second Amendment by placing its words in what they call a “larger context.” Although original-intent jurisprudence was discredited years ago among constitutional law professors, that has not stopped nonoriginalists from using “original intent” – or the original principles “underlying” the text – to negate its original public meaning.

But I can imagine there is a bit of panic in the liberal ranks. You see, originalism was made out by the Left to be a myth — a tactic that was impossible to practice (because after all who knows what they were thinking 200 years ago) and an approach that should be dismissed out of hand by all modern legal scholars who know that the only way this really works is to get Justice Kennedy to agree with your desired policy outcome. But originalism does work, and it works because it is the only judicial theory which prevents judges from tripping down the path of policy preferences — making up spurious balancing tests and open-ended phrases to excuse their actions in replacing the decisions of the elected branches without constitutional warrant.

So I can understand that the liberal pundits and law professors are miffed. But they can take comfort, since they are only a justice away from steering the Court right back to where they want it. And Obama will be more than happy to send reinforcements for Justices Breyer, Ginsburg, and the rest of the justices who really think originalism is piffle. Unfortunately for them, Justice Scalia has proven that it is not.



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