The Scalia Paradox

As Mark Tushnet has astutely observed: “Antonin Scalia isn’t as smart as he thinks he is.”

In a way, it is too bad that George II ultimately elected not to elevate Scalia to the chief justice’s chair. For that means no Senate Democrat will ever be allowed to grill Scalia on the paradox inherent in his ceaseless benchbound bloviating about his “originalist” approach to the Constitution.

For, as David Kairys has pointed out: “[t]he guiding principle for interpreting the Constitution, according to Scalia, is ‘text and tradition’—the text of the Constitution and the historical traditions of American society. This principle flunks its own test: it is not itself in the text of the Constitution and does not accurately describe our constitutional history or tradition, which has been extraordinarily activist (though usually not on civil-rights issues).”

Put even more simply: Scalia says the Constitution must be interpreted solely by interpreting its text as it was understood at the time of the Founding, and by traditions in place at the time of the Founding. But the Constitution itself says no such thing.

Thus, the Constitution itself provides no more support for Scalia’s judicial approach than it would for a justice who elects to decide cases by flipping a coin, or by consulting a monkey.

Read the thing, and see.

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3 Responses to “The Scalia Paradox”


  1. 1 Julia January 27, 2010 at 12:05 am

    I clearly remember, even in the pro-Republican halls of Wheatland schools, learning that the constitution was a “living document” that was meant to grow and change. What says Scalia to that charge?

    • 2 bluenred January 28, 2010 at 11:23 pm

      Scalia would say that your schools were owned and controlled by nefarious lib’ruls seeking to brainwash the youths in their care. His theory is that the Constitution died the moment it was born, and is frozen in a crypt, like Lenin, forever after. But then, as the post indicated, he’s just a blowhard party hack who doesn’t know the law from a leachfield.

  2. 3 Julia January 30, 2010 at 11:00 pm

    Controlled by nefarious liberals? I was THE liberal at my school! Wish I’d realized that at the time, it would have saved me a lot of confusion….

    Scalia is Wrong.


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