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04/24/2017

Beyond the Text: Justice Scalia's Originalism in Practice
Michael Ramsey

I have posted a new essay on SSRN: Beyond the Text: Justice Scalia's Originalism in Practice (Notre Dame Law Review, 2017, Forthcoming).  Here is the abstract

This article, part of a symposium on the late Justice Antonin Scalia, considers Justice Scalia’s use of constitutional originalism as a practical methodology, as reflected in his judicial opinions. Its aim is not comprehensive, for that is likely beyond the scope of any single article. Rather, its goal is to identify central and perhaps unexpected components of Justice Scalia’s approach as well as to identify areas where his methodology remained undeveloped. Part I describes four prominent aspects of his use of originalism to decide cases. In particular, it discusses ways in which Justice Scalia went beyond the conventional textualist focus on the Constitution’s words and phrases and direct evidence of the ways they were used at the time of enactment. Although critics have used these departures to accuse Scalia of inconsistency, this Part argues that they are better understood as components of an originalist methodology that was less strictly textualist than is often supposed. Part II identifies four areas central to practical applications of originalism where Justice Scalia did not fully develop his approach, and where a textualist account seems unlikely to provide ready solutions.