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
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: Suggested Citation