Abstract

Throughout the nineteenth century and beyond, a “naïve” originalism pervaded Court thinking. That changed when legal realists urged the Court to exercise judicial restraint and defer to elected branches of government. The Court exercised restraint from the late New Deal until Brown. Since then jurists have broadened the discretion available to their own branch by identifying a “living Constitution,” which changes with judicial decisions. To counter that view, Antonin Scalia constructed a rugged originalism that combines textual analysis with a search for original meaning while maintaining respect for the legislative branch and the principle of stare decisis.