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If Scalia Had His Way

Publication Date: 
January 08, 2011
The New York Times
Jeffrey Rosen

Professor Michael W. McConnell is quoted in the following article on Justice Antonin Scalia and constitutional originalism. The New York Times filed this story:

Constitutional originalism is all the rage these days. In Congress, the new Republican House majority opened the session with a reading of the Constitution and a requirement that every proposed bill cite the specific constitutional authority on which it relies.

And the Supreme Court begins its new session this week with renewed energy on the originalist wing. Justice Antonin Scalia, the court’s leading originalist, has agreed to address the House Tea Party caucus on the separation of powers. He has also delivered speeches recently outlining his original understanding of the Constitution in areas like sex equality and the death penalty.


His vision might call into question much of the post-New Deal regulatory state, and for pragmatic reasons, Justice Scalia and other conservatives have so far refused to embrace it. “Part of the problem is that we’ve already come so far from the original understanding that I don’t think we’re going to go back very far on this,” said Michael McConnell of Stanford Law School, a leading conservative constitutional historian.


Resurrecting this forgotten clause might lead to greater protection for a range of individual rights. “Recently, originalism has taken some serious hits on the court not because of its opponents,” said Professor McConnell, “but because of its proponents, who manifested a distinct lack of interest in following the original understanding when it became inconvenient.”