When Originalism Attacks: How Justice Scalia's Resort to Original Expected Application in Crawford v. Washington Came Back to Bite Him in Michigan v. Bryant

39 Pages Posted: 16 Apr 2011 Last revised: 21 Sep 2018

See all articles by Brendan T. Beery

Brendan T. Beery

Western Michigan University Cooley Law School

Date Written: April 11, 2011

Abstract

Justice Scalia personifies the philosophical anxieties that lead judges to adopt species of textualist and originalist methods that anchor meaning to centuries past and to surface meaning. The resulting constitutional rules are so narrow that they are impossible to apply without producing absurd results. Thus, Justice Scalia’s brand of originalism and textualism, which are effectuated by embedding original expected application in the Court’s precedents and willfully ignoring semantic depth, invite future courts to manifest the kind of intellectual dishonesty and contortionism exemplified by the Court’s recent opinion in Michigan v. Bryant. This Article explores that case and, more broadly, the effects of Justice Scalia’s narrow interpretive methods on the Court’s Confrontation Clause jurisprudence. The Article is especially timely in that it addresses not only Bryant (which raised eyebrows with its attack by Justice Scalia on Justice Sotomayor) but also the role Justice Scalia’s methods played in the recent dust-up over his assertion that the Equal Protection Clause does not protect women.

Keywords: Scalia, Confrontation Clause, originalism, textualism, text and principle, equal protection, fourteenth amendment, constitutional interpretation

Suggested Citation

Beery, Brendan Thomas, When Originalism Attacks: How Justice Scalia's Resort to Original Expected Application in Crawford v. Washington Came Back to Bite Him in Michigan v. Bryant (April 11, 2011). 59 Drake L. Rev. 1047 (2011). Available at SSRN: https://ssrn.com/abstract=1809145

Brendan Thomas Beery (Contact Author)

Western Michigan University Cooley Law School ( email )

300 S. Capitol Avenue
P.O. Box 13038
Lansing, MI 48901
United States

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