The Most Faithful Originalist?: Justice Thomas, Justice Scalia, and the Future of Originalism
Lee J. Strang
University of Toledo College of Law
March 1, 2011
University of Detroit Mercy Law Review, Vol. 88, 2011
University of Toledo Legal Studies Research Paper No. 2012-05
This Symposium Essay argues that Justice Scalia, not Justice Thomas, is the more faithful originalist. First, it describes the received wisdom. Second, it compares Justice Thomas’s approach to Justice Scalia’s on three axes of contention within originalism and concludes that Justice Scalia’s is the more faithful to originalism. Lastly, it raises the possibility that, of the two, Justice Scalia has, as a practical matter, done more to move American legal practice toward originalism than Justice Thomas.
Number of Pages in PDF File: 11
Keywords: originalism, Justice Thomas, Justice Scalia, natural law, precedent, Declaration of IndependenceAccepted Paper Series
Date posted: March 6, 2012
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