Thursday, October 17, 2013

Is Scalia Stout-Hearted?

There has been much discussion of Justice Scalia's interview, mentioned here a few days ago, in which among other things he backed away from an old remark, in which he said that he was a "faint-hearted" originalist; he now says he tries to be "stout-hearted." If a state wants to impose flogging as a punishment, the Constitution as it was understood in 1791 would allow that, Scalia now says. The trouble with this position, as Linda Greenhouse notes in a charming OpEd , it is not possible to be a consistent originalist, in Scalia's sense, and he doesn't reallly try to be. My own view is that Scalia's faithfulness to the original understandings of the founders would require him to discard an enormous mass of precedent on which the Court relies, and must rely. Holmes was right, faithfulness to precedent is a necessity, as well as a duty.