Antonin Scalia and the Dilemma of Constitutional Originalism

Antonin Scalia has had a very significant and healthy impact on the way people talk about American constitutional law. Thanks largely to Justice Scalia’s forceful and eloquent voice, originalism is now so respectable that even those who seek to advance an aggressive and progressive “living constitution” frequently find it prudent to pose as expositors of the Constitution’s original meaning. Scalia’s substantial effect on the terms of debate in constitutional law, however, is not likely to be matched by a comparable influence on the future of the law itself. Apart from political realities that affect appointments to the Court, originalism faces obstacles that have deep historical roots. This essay explores those obstacles before considering two examples that suggest why Scalia’s originalism is unlikely to make a decisive contribution to the reformation in constitutional law that he sought.