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The Inconsistency of Justice Scalia’s Originalism

With the passing of Justice Scalia, various critics of the justice have made a sport of trying to point out areas where the justice might not have lived up to his own originalist principles.  I certainly think it is important for all justices, especially originalist justices, to follow originalist principles.  But I don’t approve of the attempt to use originalist principles as a club to attack originalists who sometimes did not live up to those principles.

It is hard to be a justice.  One does not have the luxury, like a law professor, of simply writing about the issues one feels comfortable discussing.  The issues come up with the cases (even given certiorari at the Supreme Court) and the justices must decide them.  Given the pressures and forces of judicial politics, especially in an age where nonoriginalism has been the dominant view for generations, it is hard to expect an originalist justice to be entirely consistent.

In determining how bad it was that a justice did not follow a principle, one must consider a variety of factors, including how difficult it would be to follow the principle (in terms of matters such as consequences and reputation).  That nonoriginalist justices follow their own political views – which can be adjusted to their own values, to current politics, or to most other things – is not an especially difficult thing.  Thus, comparing an originalist justice who follows originalism only 75% of the time with a nonoriginalist who follows nonoriginalism 95% or 100% of the time is misguided.  It is much harder to be the originalist.

It was all the harder to be an originalist in the early years when Scalia wrote.  He had to both develop the principles as well as apply them in a world that had largely done neither.

Some have criticized Justice Scalia for a variety of decisions that they say cannot be justified under originalism.  I have written several articles attempting to justify under originalism various positions which (as it turns out) Justice Scalia adopted, including a prohibition on state affirmative action, a requirement of paying compensation for certain regulatory takings, and protection of various state immunities, such as sovereign immunity and commandeering immunity.

In other areas, however, I believe that there is little that can be said for Justice Scalia’s position.  In my next post, I will discuss one of these areas – Justice Scalia’s position concerning the federal government’s immigration power.  Interestingly, the critics have said very little about this area.

Reader Discussion

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on October 06, 2016 at 22:16:01 pm

Justice Scalia, I thought, had a fairly normal view of congress's immigration powers even among originalists. Ilya Somin is the only originalist I know who is seriously arguing that congress has no immigration power. Are you saying that the normal view that congress has power to regulate immigration is not originalist?

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Devin Watkins
on October 07, 2016 at 08:54:18 am

If not congress, then who does?

I have seen some who argue that the States do, but this does not appear right either.

As for the Executive, from where in the constitution does this power arise?

Then again, perhaps there is no power to regulate immigration and the founders believed as do many Libertarians (and Democrats) that there is a "natural right" to move to a country of YOUR choice.

Yep, that must be it - sure seems that way today, doesn't it?

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gabe
on October 20, 2016 at 03:02:33 am

[…] a recent post, I noted that Justice Scalia has been criticized for departing from originalism in various […]

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Image of Justice Scalia and Congress’s Power to Regulate Immigration | Michigan Standard
Justice Scalia and Congress’s Power to Regulate Immigration | Michigan Standard
on April 10, 2018 at 14:04:35 pm

I am an originalist and the Federal government clearly has no power to make immigration laws or agencies. The 10th Amendment is quite clear.

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John Ashman
on April 10, 2018 at 14:06:33 pm

The 10th Amendment makes it clear that it is a state issue. It only doesn´t seem right because the power was usurped 100 years before you were born. No state would have ratified a Constitution that took away their power to manages their borders an people.

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John Ashman

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.