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Originalism and the Criminal Law: Vindicating Justice Scalia's Jurisprudence ― And the Constitution

37 Pages Posted: 23 Sep 2016  

Adam Lamparello

affiliation not provided to SSRN

Charles E. MacLean

Indiana Tech - Law School

Date Written: September 22, 2016


Justice Scalia was not perfect — no one is — but he was not a dishonest jurist. As one commentator explains, “[i]f Scalia was a champion of those rights [for criminal defendants, arrestees], he was an accidental champion, a jurist with a deeper objective — namely, fidelity to what he dubbed the ‘original meaning’ reflected in the text of the Constitution — that happened to intersect with the interests of the accused at some points in the constellation of criminal law and procedure.” Indeed, Justice Scalia is more easily remembered not as a champion of the little guy, the voiceless, and the downtrodden, but rather, as Texas Gov. Greg Abbott said, an ‘unwavering defender of the written Constitution.’”

Justice Scalia’s frustration with the Court was certainly evident at times during his tenure, and understandably so. In United States v. Windsor, Scalia lamented as follows:

“We might have covered ourselves with honor today, by promising all sides of this debate that it was theirs to settle and that we would respect their resolution. We might have let the People decide. But that the majority will not do. Some will rejoice in today's decision, and some will despair at it; that is the nature of a controversy that matters so much to so many. But the Court has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat. We owed both of them better.”

The above passage captures the essence of Justice Scalia’s philosophy, and the enduring legacy that will carry forward for many years after his death. At the end of the day, Justice Scalia, whether through well-reasoned decisions, blistering dissents, or witty comments at oral argument, spoke a truth that transcends time: “[m]ore important than your obligation to follow your conscience, or at least prior to it, is your obligation to form your conscience correctly.” And “[h]ave the courage to have your wisdom regarded as stupidity… and have the courage to suffer the contempt of the sophisticated world.” You will be missed, Justice Scalia. You left the Court — and the law — better than it was before you arrived.

Keywords: Justice Scalia, Originalism, Living Constitutionalism, United States Supreme Court, Constitutional Law

JEL Classification: K40

Suggested Citation

Lamparello, Adam and MacLean, Charles E., Originalism and the Criminal Law: Vindicating Justice Scalia's Jurisprudence ― And the Constitution (September 22, 2016). Akron Law Review, Forthcoming. Available at SSRN:

Adam Lamparello (Contact Author)

affiliation not provided to SSRN

Charles MacLean

Indiana Tech - Law School ( email )

1600 East Washington Blvd.
Fort Wayne, IN 46803
United States
260-422-5561 x-3447 (Phone)

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