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:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::


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    [::..archive..::]
    ::

    :: Wednesday, November 15, 2006 ::
    Justice Scalia was in fine form at the Yale Political Union last Thursday night, and participated in the ensuing debate as well as giving a speech. Though he had to leave the debate before its end due to leg-stretching needs (so YPU student leaders told me), he answered questions from students at the subsequent reception for about an hour.

    The next day's write-up in The Yale Daily News suggests that many students were favorably impressed.

    In the speech, he made one point that I have not heard him make off the bench before (though it's in his Casey dissent): that, while ideologically polarized judicial confirmations are regrettable, they are inevitable -- and even appropriate! -- as long as the Court conceives its business to be the writing of a new Constitution every day, or at least, whenever a novel but fashionable new rights-claim is made. The American people aren't fools, as he said in the Casey dissent and again at Yale, and they have naturally realized that if the Constitution is continually rewritten by the Court, their only bite at the lawmaking apple is the confirmation process, with their Senators representing them.

    To my surprise and relief, even the most hostile questioners did not assume that originalism means restoring the status quo of 1787, in every detail, through judicial action. That's a common view in -- if not the liberal blogosphere -- then at least the liberal blog comment-o-sphere. I guess either people so, um, rudimentary in their understanding still don't get into Yale, or they do but they avoid the danger (with which Yale, thanks to its prestige, can still present them) of hearing a contrary argument straight from its foremost proponent.

    No, the hostile questions and opposing speeches, most of which were quite intelligent, all pointed to problems with originalism. But Scalia had prepared for this: the final point in his speech was that originalism does have problems, but that all alternatives to it have even more problems, beginning with the fundamental problem of legitimacy.

    The next morning, Scalia spoke at the Yale Law School. I was not there, but it was live-blogged here. Much of the same material as the evening before -- but note the frank discussion of how he and Thomas disagree over the scope of stare decisis. (Clearly the context here is the Commerce Clause: there's no disagreement between them over the stare-decisis nullity of, say, Roe.)

    :: David M. Wagner 2:41 PM [+] ::
    ...

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