Will the Real Constitutional Originalist Please Stand Up?

Abstract

The purpose of this Article, however, is very similar to "To Tell the Truth." Justice Antonin Scalia is widely recognized as the preeminent judicial proponent of the "original meaning," textualist approach to interpreting the United States Constitution. Supporters and opponents of originalism alike credit him as the contemporary Godfather of the originalist movement. 2 But there is another Justice on the Supreme Court, a quiet Justice who rarely speaks during oral argument and not famous for his lectures or books on this topic, who may be as much or more committed to the principles of originalism as Justice Scalia. That Justice, of course, is Clarence Thomas. The proof of a judge's judicial philosophy is found in court opinions; so rather than looking to articles and speeches, the modest purpose of this Article is to play "To Tell the Truth" by examining the evidence of the constitutional decisions written by Justices Scalia and Thomas during their fifteen years on the Supreme Court together 3 in order to ask the question...Will the real original meaning textualist please stand up?

Keywords: Constitution, originalist, textualist, Scalia, Thomas

JEL Classification: K10, K11