Justice Scalia ’ s Originalism : Original or Post - New Deal ?

The Cato Institute’s Center for Constitutional Studies is pleased to publish this 15th volume of the Cato Supreme Court Review, an annual critique of the Court’s most important decisions from the term just ended plus a look at the term ahead—all from a classical liberal, Madisonian perspective, grounded in the nation’s first principles, liberty through limited government. We release this volume each year at Cato’s annual Constitution Day conference. And each year in this space I discuss briefly a theme that seemed to emerge from the Court’s term or from the larger setting in which the term unfolded. A single event overshadows the October 2015 term, of course: the unexpected death on February 13, 2016, of the Court’s senior member, Justice Antonin Scalia. Quite apart from its effect on the balance of the term, and its implications in this extraordinary election year for the term ahead, the untimely loss of so powerful and influential an intellect is likely to be felt for years to come. More than anyone on or off the Court, Justice Scalia worked to secure the rule of law by restoring originalism as the proper method for deciding cases. Rejecting the modern “living Constitution” and the wide discretion that approach to constitutional interpretation affords a judge, he argued brilliantly, often in scintillating dissents, that to preserve the rule of law—and, presumably, the legitimacy it entails—judges must ground their decisions in the statutory or constitutional text as understood by those who wrote or ratified it.