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Constitutional Law

Originalism

Selected Works

Brendan T Beery

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When Originalism Attacks: How Justice Scalia's Resort To Original Expected Application In Crawford V. Washington Came Back To Bite Him In Michigan V. Bryant (Forthcoming In 59 Drake L Rev ___ (Symposium Issue)(Summer 2011)), Brendan T. Beery Dec 2010

When Originalism Attacks: How Justice Scalia's Resort To Original Expected Application In Crawford V. Washington Came Back To Bite Him In Michigan V. Bryant (Forthcoming In 59 Drake L Rev ___ (Symposium Issue)(Summer 2011)), Brendan T. Beery

Brendan T Beery

Justice Scalia personifies the philosophical anxieties that lead judges to adopt species of textualist and originalist methods that anchor meaning to centuries past and to surface meaning. The resulting constitutional rules are so narrow that they are impossible to apply without producing absurd results. Thus, Justice Scalia’s brand of originalism and textualism, which are effectuated by embedding original expected application in the Court’s precedents and willfully ignoring semantic depth, invite future courts to manifest the kind of intellectual dishonesty and contortionism exemplified by the Court’s recent opinion in Michigan v. Bryant. This Article explores that case and, more broadly, the …