For example, Justice Black was a strong defender of the “high wall” theory of the establishment clause. However, he reached results that Scalia and Thomas would never countenance. Justice Black is often neglected in the literature on originalism, but he was the Supreme Court’s first full-throated originalist. In Limits of Constraint: The Originalist Jurisprudence of Hugo Black, Antonin Scalia, and Clarence Thomas, I show that justices often reached opposite conclusions using the same “originalist” approach: text and history. Among other things, Cole argues that the theory does not deliver on its promise of constraining judicial discretion, because of the many interpretive choices it leaves to judges.īut there is also empirical evidence for this claim. David Cole’s “Originalism’s Charade” is a devastating critique of originalism as a method of interpreting the Constitution.
0 Comments
Leave a Reply. |