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Chemerinsky: The Failures of Scalia's Originalism

Posted By Administration, Tuesday, February 16, 2016

Although Justice Antonin Scalia succeeded in many ways in moving the U.S. Supreme Court in a conservative direction, he also failed in some of his most important quests.

Scalia, for example, never could persuade a majority of his colleagues to embrace his originalist approach to interpreting the Constitution—and his belief that the meaning of a constitutional provision is fixed when it is adopted and can be changed only by amendment. In many cases, most notably in finding a constitutional right to marriage equality in Obergefell v. Hodges, the court expressly rejected originalism and embraced the idea of a living Constitution whose meaning evolves by interpretation.

Similarly, Scalia never could get a majority of the court to adopt his view that statutes are interpreted solely based on their plain text without attention to the underlying legislative purpose or legislative history. For example, last spring, the court in King v. Burwell, over Scalia’s vehement objections, interpreted the Affordable Care Act based on its clear purpose to permit all who qualify economically to receive tax credits if they purchase insurance from a health care exchange.          

Scalia failed in some of the constitutional areas in which he seemed to care the most. The court did not overrule Roe v. Wade during his tenure or hold that all affirmative action is unconstitutional or adopt his view that the government only violates the establishment clause of the First Amendment if it literally adopts a religion or coerces religious participation. But Scalia was in the majority in allowing more government regulation of abortion, in imposing limits on affirmative action, and in permitting more of a religious presence in government, such as in prayers before legislative sessions and aid to parochial schools.

Read the whole story at National Law Journal

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