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Abstract

This Essay considers the late Justice Antonin Scalia’s contributions to constitutional originalism as a practical methodology. Justice Scalia was the leading judicial theorist and advocate of originalism of his era, and his legacy has widely been assessed in those terms. He was also, along with Justice Clarence Thomas, the leading judicial practitioner of originalism of his era. This latter role has received less comprehensive attention. Although there are of course countless articles analyzing and critiquing his originalist methodology in particular cases, or seeking to demonstrate that certain of his opinions are inconsistent with his theoretical commitments, relatively few articles have surveyed the full range of his constitutional opinions to extract the practical components of his originalist methodology.

This Essay seeks to contribute to a descriptive account of Justice Scalia’s originalist 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 Scalia’s approach as well as to identify areas where his methodology remained undeveloped. To this end, it describes four prominent aspects of his use of originalism to decide cases—some of which may be surprising to originalist scholars. In particular, it discusses ways in which Scalia went beyond the conventional originalist focus on the Constitution’s words and phrases and direct evidence of the ways they were used at the time of enactment. It further identifies four areas central to practical applications of originalism where Scalia did not fully develop his approach.

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