Originalism: The Lesser Evil, 57 U. CIN. L. REV. () [hereinafter Scalia,. Originalism]; Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. CHI. L. Justice Antonin Scalia’s sudden death in February, , was a great loss for his . 13 Antonin Scalia, Originalism: The Lesser Evil, 57 U. CINN. L. REV. In this well-known article, Justice Scalia explains and defends originalism, which Type: Article; Author(s): Antonin Scalia; Date: ; Volume: 57; Issue:

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Justice Scalia undeniably was the brightest judicial minds. Finally comparing the two diametrically opposite theories of constitutional interpretation, Scalia concluded that originalism was the better evil. The minority opinion which based its logic in originalism was not supported by Scalia.

Originalism: The Lesser Evil Essay 57 University of Cincinnati Law Review

In Gonzalves on the other hand Justice Scalia joined the majority judgment in upholding the application of the Controlled Substances Act to persons who grew cannabis on their own property solely for their own medical use as recommended by their physicians and authorized by the State Law. Infact, It can be even said that he perhaps was not a true originalist like Justice Thomas.


In both these cases Justice Scalia dissented from the majority opinions using originalism. In Kelo the Court upheld the use of eminent domain to take private property for the use of a private developer.

Chief Justice Marshall in the landmark case of Marbury v Madison held that if the law was to make any attempt at consistency and predictability, surely there must be general agreement not only that judges reject one exegetical approach originalism but that they adopt another.

Antonin Scalia & Originalism : A Critique

S 52 ] to profess the originalist approach. He wrote that the principal theoretical defect of non-originalism was its incompatibility with the very principle that legitimizes judicial review of constitutionality.

His departure to heaven is a big loss to the legal fraternity. There are 3 main objections to Originalism. His most important and perhaps the most controversial work was the theory of Originalism as a tool of constitutional interpretation.

Namit Saxena is a lawyer and can be reached at namitsaxena gmail. Scalia, 79, was considered one of the most influential judges of the last quarter century and an expert in constitutional law.


May his soul, Rest in Peace! Scalia relied on this opinion to adopt methodology of proof by contradiction that non-originalism may have sntonin benefits but the originalist approach was better.


And thirdly, originalism as keeps his one firm hand in the past is not the correct approach for the future course. Scalia, even while proposing his constitutional legitimacy did not focus on legitimacy of judicial review for his approach.

Antonin Scalia & Originalism : A Critique

To sum up, Justice Scalia was not a true originalist in spirit and could never originalisn fearless originalism. Notably, while a major chunk of originalists stress on the theory of popular sovereignty, Justice Scalia developed and relied on theory of constitutional legitimacy.

Scalia also noted that originalism is not devoid of defects and the primary impurity in it was the difficulty of applying it correctly. Firstly, it is impractical as it is almost impossible to accurately devise the true intentions of the number of framers.