Beyond the Text: Justice Scalia's Originalism in Practice

Michael D. Ramsey*

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,¹ and his legacy has widely been assessed in those terms.² 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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© 2017 Michael D. Ramsey. Individuals and nonprofit institutions may reproduce and distribute copies of this Essay in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*Hugh and Hazel Darling Foundation Professor of Law, University of San Diego School of Law; law clerk to Justice Scalia, October Term 1990. Thanks to Amy Coney Barrett, Anthony Bellia, Brian Fitzpatrick, Richard Garnett, Alan Meese, Lisa Ramsey, and Michael Rappaport for helpful comments

1 See generally Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law (Amy Gutmann ed., 1997); Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849 (1989).

2 See, e.g., Jamal Greene, The Supreme Court, 2015 Term—Essay: The Age of Scalia, 130 Harv. L. Rev. 144 (2016); Saikrishna Bangalore Prakash, A Fool for the Original Constitution, 130 Harv. L. Rev. Forum 24 (2016).