"Scalia's Infidelity" Paper and Webcast:
This afternoon, I am giving the William Howard Taft Lecture at the University of Cincinnati Law School. I take as my subject, Justice Scalia's 1988 Taft Lecture, "Originalism: The Lesser Evil," in which he describes himself as a "faint-hearted originalist." The title of my talk is "Scalia's Infidelity: A Critique of Faint-Hearted Originalism." You can watch a live webcast of the lecture here and download the paper on which it is based here. This is the abstract:
In this essay, based on the 2006 William Howard Traft lecture, I critically evaluate Justice Antonin Scalia's famous and influencial 1988 Taft Lecture, entitled Originalism: The Lesser Evil. In his lecture, Justice Scalia began the now-widely-accepted shift from basing constitutional interpretation on the intent of the framers to relying instead on the original public meaning of the text. At the same time, I explain how Justice Scalia allows himself three ways to escape originalist results that he finds to be objectionable: (1) when the text is insufficiently rule-like, (2) when precedent has deviated from original meaning and (3) (when the first two justifications are unavailing) just ignore originalism to avoid sufficiently objectionable results. While Justice Scalia describes his approach as "faint-hearted originalism," I contend that he is not really an originalist at all as evidenced by this lecture and also by his stances as a justice in several important cases. This leaves Justice Thomas as the only justice who seems at all bound by originalist conclusions with which he may disagree. I then summarize why the courts ought to adhere to original public meaning originalism, why this form of originalism is preferable to the principal alternative - which I call the "underlying principles approach" - and why originalism, properly understood, does not lead to the types of grossly objectionable results that leads Justice Scalia to be faint of heart.
Update: Apparently the live webcast has been cancelled. Perhaps an archived webcast will be uploaded later, as with previous lectures.