The Most Faithful Originalist?: Justice Thomas, Justice Scalia, and the Future of Originalism

Abstract

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.

Keywords: originalism, Justice Thomas, Justice Scalia, natural law, precedent, Declaration of Independence