March 09, 2010

Is Justice Scalia abandoning originalism?

I wrote, after oral argument in McDonald, that faint-hearted originalist Scalia had reared his head. Ilya Shapiro and Josh Blackmun pick up the issue in the Washington Examiner and argue that if Scalia incorporates under Due Process he might as well hand in his O-card.
Without the Privileges or Immunities Clause, however, the Court must continue extending the un-originalist version of substantive due process to protect the right to keep and bear arms. To give original meaning to the Second Amendment, it must ignore the original meaning of the Fourteenth Amendment! ...

Granted, Scalia has been far from a down-the-line originalist. On more than one occasion, where originalism does not achieve the result he wants, he ignores the history and stands by precedent. (Most recently, Scalia voted to uphold the federal power to trump state regulation of medicinal marijuana, even if the drug never crosses state lines.) To explain these variances, Scalia has called himself a “faint-hearted originalist” or an “originalist, but not a nut.”

But if the opinion Scalia joins in McDonald matches his signals at argument, the justice will no longer be able to call himself an originalist of any kind. He will have to turn in his O-card and leave Clarence Thomas as the only originalist on the Court. (Not coincidentally, Thomas is the only justice on record as favoring a revival of the Privileges or Immunities Clause.)

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