Oct 6, 2013

Posted in Uncategorized

Scalia was not an originalist, faint-heated or otherwise, in McDonald v. Chicago

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In his recent interview in New York Magazine that has ginned up a lot of attention, Scalia repudiates his “faint-hearted originalism.”

You’ve described yourself as a fainthearted originalist. But really, how fainthearted?
I described myself as that a long time ago. I repudiate that.

So you’re a stouthearted one. 
I try to be. I try to be an honest originalist! I will take the bitter with the sweet! What I used “fainthearted” in reference to was—

This repudiation must be super recent. In 2010, in McDonald v. Chicago, Scalia was not an originalist, faint-hearted or otherwise. he did not take the “bitter with the sweet.” He ignored the original history of the Privileges or Immunities Clause because he was afraid it would open up a pandora’s box of liberal rights (as Ilya Shapiro and I alluded to in this article). Ilya and I also wrote this op-ed arguing that Scalia abandoned originalism in this case.

This is a really tough pill to swallow.

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