« Michael Greve on Preemption
Michael Ramsey
| Main | "Is Missouri v. Holland on a Near-Term Collision Course with the Supreme Court?"
Michael Ramsey
»

05/05/2012

Timothy Sandefur: Is Justice Scalia the Truer Originalist?
Michael Ramsey

At the Pacific Legal Foundation's PLF Liberty Blog, Tim Sandefur: Is Justice Scalia the Truer Originalist? (commenting on Lee Strang's article arguing that Scalia is a more faithful originalist than Justice Thomas).  Sandefur disagrees:

Thomas believes that originalism can trump precedent. Not always, to be sure—and Thomas has been willing to stick with bad precedent when he believes that worse consequences would flow from overruling it. But if originalism means anything, it means that the Constitution has a meaning, and that it’s possible for courts to get that meaning wrong, and between those two—following the wrongly decided precedent or following the Constitution’s actual meaning—a judge must choose the latter. One can disagree with this approach, but it’s logically valid. On the contrary, I know of no evidence that the framers believed that precedents should be clung to even where it contradicts the Constitution’s meaning. Strang’s only argument on his point is to say that the phrase "the Judicial Power" in Article III, section 1 of the Constitution "requires federal judges to give constitutional precedent, including nonoriginalist precedent, ‘significant respect.’" But even if one accepts this, it hardly requires a justice to stick with a constitutional interpretation that he believes to be wrong. To read it that strongly would make precedent trump even the Constitution—and that would mean that whatever the Court says just is what the Constitution means—and that, of course, contradicts the basic premise of originalism.