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.