Justice Scalia's Eighth Amendment Jurisprudence: The Failure of Sake-of-Argument Originalism

83 Pages Posted: 13 Feb 2019

See all articles by Craig S. Lerner

Craig S. Lerner

George Mason University - Antonin Scalia Law School, Faculty

Date Written: February 1, 2019


How is an originalist judge in the common law tradition to reconcile the competing demands of the Constitution’s original meaning and an accumulating body of nonoriginalist precedents? This Article explores the dilemma of constitutional originalism through a comprehensive review of Justice Scalia’s Eighth Amendment jurisprudence. In this legal context the dilemma is infused with a moral dimension. Many punishment practices common in 1791 are widely considered barbaric today. When confronted with the choice between the Eighth Amendment’s original meaning and a clearly erroneous precedent that better aligns the Constitution with the moral tenor of the times, which is an originalist judge to choose?

In an essay published soon after joining the Supreme Court, Justice Scalia outlined an answer to this question. He anticipated that his Eighth Amendment opinions would be framed as arguments in the alternative—first, the Constitution, properly understood, did not foreclose a punishment; and, in the alternative, even if nonorginalist precedents were followed for the sake of argument, the result would be the same, because there was “inadequate indication that any evolution in social attitudes has occurred.” Almost all of his Eighth Amendment opinions proved to be of this character. As demonstrated in this Article, Justice Scalia’s hopeful expectation that he could achieve orginalist results through such a strategy was disappointed. One problem is that the strategy presumes that there has been no meaningful “evolution in social attitudes” with respect to punishment since 1791. The deeper problem is that it is not enough for the community’s “social attitudes” to remain durable. The relevant question is whether the moral sentiments of the legal elites who ascertain these “social attitudes” remain durable. In one of his final Eighth Amendment opinions, Justice Scalia conceded the defeat of sake-of-argument originalism. He intimated a willingness to pursue a more heroic originalist agenda, potentially displacing mountains of nonoriginalist precedent. This Article highlights the tension an originalist judge faces, more than two centuries after the Constitution’s ratification, between a principled adherence to original meaning, which can appear revolutionary, and a humbler originalism, which can appear opportunistic.

Keywords: Justice Scalia, originalism, Eighth Amendment, death penalty

JEL Classification: K10, K14

Suggested Citation

Lerner, Craig S., Justice Scalia's Eighth Amendment Jurisprudence: The Failure of Sake-of-Argument Originalism (February 1, 2019). Harvard Journal of Law and Public Policy, Vol. 42, No. 1, 2019, George Mason Legal Studies Research Paper No. LS 19-06, Available at SSRN: https://ssrn.com/abstract=3333299 or http://dx.doi.org/10.2139/ssrn.3333299

Craig S. Lerner (Contact Author)

George Mason University - Antonin Scalia Law School, Faculty ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States

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