Bridging the Divide Between Justice Kennedy’s Progressivism and Justice Scalia’s Textualism: Introducing the Concept of Negative Originalism

17 Florida Journal of Law and Public Policy 4 (2007)

45 Pages Posted: 18 Jan 2011 Last revised: 1 Jan 2014

Date Written: 2007

Abstract

This Article introduced the concept of “reverse” or negative originalism. To begin with, “reverse originalism” recognizes that both Justice Kennedy's progressivism and Justice Scalia's originalism contain valuable aspects that should remain relevant to values based constitutional adjudication. For example, in some cases, evolving or contemporary perspectives of fairness and due process should inform Court's decisions. Indeed, the collective conscience of individuals, groups and institutions, over time, both domestic and international, can provide important insights into the liberty that lies at the core of the U.S. constitutional framework. Importantly, however, progressivism is not without its limitations and, if applied exclusively, would threaten to undermine years of Supreme Court jurisprudence. It could, for example, undermine the stare decisis doctrine, risk uncertainty and unpredictability for future litigants, unduly compromise the core majoritarian premise of our democratic system, and potentially invest in judges a legislative or policymaking power that transgresses the boundaries of proper judicial review. A significant check upon progressivism, therefore, lies in maintaining the relevance of tradition and history. The Constitution's text does -- and should -- matter, because it prevents the Court from issuing decisions in the name of liberty that, paradoxically, make governance less democratic.

Keywords: Criminal Law, Constitutiona Law, Human Right Law

JEL Classification: H51

Suggested Citation

Lamparello, Adam, Bridging the Divide Between Justice Kennedy’s Progressivism and Justice Scalia’s Textualism: Introducing the Concept of Negative Originalism (2007). 17 Florida Journal of Law and Public Policy 4 (2007). Available at SSRN: https://ssrn.com/abstract=1742963 or http://dx.doi.org/10.2139/ssrn.1742963

Adam Lamparello (Contact Author)

Independent ( email )

No Address Available

Register to save articles to
your library

Register

Paper statistics

Downloads
48
Abstract Views
501
PlumX Metrics
!

Under construction: SSRN citations while be offline until July when we will launch a brand new and improved citations service, check here for more details.

For more information