« Keith Whittington & Jason Iuliano: The Myth of the Nondelegation Doctrine
Michael Ramsey
| Main | Richard Primus: Thoughts on William Baude's 'Is Originalism Our Law?'
Michael Ramsey »


John McGinnis on Scalia and Reagan
Michael Ramsey

At City Journal, John McGinnis: Scalia Made the Weather.  It begins:

The English have a saying that certain politicians “make the weather,” by which they mean that they change the political climate and force others to react to their vision. Antonin Scalia made the weather on the Supreme Court of the United States for 30 years. Even in defeat, Scalia’s arguments for originalism in constitutional law and textualism in statutory interpretation were so powerfully stated that he forced others to respond. As a result, the Supreme Court today pays far more attention to originalism and textualism than it did when Scalia first came on the Court.

Scalia transformed the legal culture as well as the Court, assuring his influence for years to come. When I entered the academy a quarter of a century ago, originalism—the idea that the Constitution should be interpreted according to the meaning at the time of its enactment—was a marginal theory among professors. It was more mocked than analyzed. Today, originalism is the most discussed theory of constitutional interpretation. Law professors on the right overwhelmingly subscribe to it, but it has also gained adherents on the left. Scalia’s relentless insistence that the rule of law demanded originalism had a moral as well as analytic force. Just last month, a liberal law professor told me that—to his regret—his best and most serious students were attracted to originalism. The voice of Scalia will not be silenced as long as such students live.

But in conclusion:

Today, the ideal of limited government is under attack in both parties. A socialist has won several Democratic primaries and caucuses. The Republican front runner’s only real objection to big government is that he’s not running it. The possibility of objective rules and standards like those aspired to in our Constitution is under renewed attack on our university campuses. So is the free exchange of ideas. Scalia did great work, but his legacy will be preserved only if the republic can find new political champions of Enlightenment values who can make the case clearly, succinctly, and in fidelity to the Constitution’s original meaning. Originalists need again someone who can make the weather.