Bobby:
You're assuming that Justice Scalia is being consistent. Prof. Tribe wrote
a wonderful comment in the Harvard Law Review about the Saenz case that
convinced me (if I needed more convincing) that almost none of the justices
(conservative or liberal) are methodologically consistent. I
Scott:
Do you think Scalia was being inconsistent in this case?
In addition to Larry Tribe's comment, I would recommend Sandy Levinson's piece,
The Operational Irrelevance of Originalism. The question of the authority of
precedent is obviously a significant challenge for originalists, but Scalia
If I may be permitted to raise a minor quibble with Scott's point:
(1) A demonstration of methodological inconsistency is always difficult.
Because judges do not articulate their full theory of the law, the methodology
of a particular judge must always be inferred. When trying to prove a charge
A larger problem for Justice Scalia in Printz is that after he
says text doesn't help (which by the way it does, see Steven's dissent), is that
Scalia then purports to look at history, structure, and precedent, though
history and structure clearly cut against the result. New York does
I must be getting slow in my old age, but I don't see how precedent poses a
greater problem for originalists than for those who take other views. A
judicial decision is a superceding text adopted through a legitimate
process (even if the mode of reasoning is not what I would choose). It is
thus
