Justice Scalia Repudiates “Fainthearted” Originalism

In a 1989 article, Justice Antonin Scalia famously described himself as a “fainthearted originalist,” By which he meant that he would sometimes vote against the outcome dictated by the original meaning of the Constitution if strong precedential, moral, or other considerations cut the other way. Co-blogger Randy Barnett wrote an interesting 2006 article taking Scalia to task for his faintheartedness. But in his recent interview with New York Magazine, Scalia has repudiated the faintheartedness he earlier embraced:

You’ve described yourself as a fainthearted originalist. But really, how fainthearted?
I described myself as that a long time ago. I repudiate that.

So you’re a stouthearted one.
I try to be. I try to be an honest originalist! I will take the bitter with the sweet! What I used “fainthearted” in reference to was—

Flogging, right?
Flogging. And what I would say now is, yes, if a state enacted a law permitting flogging, it is immensely stupid, but it is not unconstitutional. A lot of stuff that’s stupid is not unconstitutional.

It’s not clear how much of a change of heart this really is. Scalia did not say that he would now never vote against an originalist outcome for any reason. But it’s possible he now has a higher threshold for doing so than in earlier years.

UPDATE: Co-blogger Will Baude points out that Scalia previously repudiated fainthearted originalism in a 2011 interview with Marcia Coyle, recounted in her recent book The Roberts Court (pg. 165).

Powered by WordPress. Designed by Woo Themes