Law Commons^™

Justice Scalia And The Art Of Rhetoric, Jeffrey Shaman

College of Law Faculty

This essay offers something different from the usual law review article: an examination of Justice Scalia's judicial opinions from a literary perspective rather than a legal one. The essay demonstrates that Justice Scalia is a master of metaphor and other belletristic flourishes. Focusing on the style rather than the substance of his writing, the essay uses examples from various Scalia opinions to illustrate that he wields a wicked poison pen, peppers his opinions with creative lists of examples, and is wont to drop in a bon mot here and there, not to mention an arcane foreign phrase that send lesser …

The End Of Originalism, Jeffrey Shaman

College of Law Faculty

This essay maintains that originalism—the idea that the Constitution should be interpreted according to its original meaning--is nearing its demise. Ironically, the beginning of the end of originalism may have been prompted by the Supreme Court’s decision in District of Columbia v. Heller, marking the first time that a majority of the Court signed onto an opinion emphatically taking an originalist slant. Heller may represent the apogee of originalism and, because it exposes the fundamental flaws of originalism, may also mark the beginning of its decline.

Originalism is a radical departure from the Supreme Court’s well-established jurisprudence of a living …