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When Scalia Wasn't Such An Originalist, Michael Lewyn
When Scalia Wasn't Such An Originalist, Michael Lewyn
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Although Justice Scalia generally described himself as an originalist, his opinion in Lucas v. South Carolina Coastal Council rejected originalist arguments. Why? This article suggests that pre-Lucas precedent and the ambiguity of the historical record might justify his methodology.
Common Ground: Robert Jackson, Antonin Scalia, And A Power Theory Of The First Amendment, Jay S. Bybee
Common Ground: Robert Jackson, Antonin Scalia, And A Power Theory Of The First Amendment, Jay S. Bybee
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There are few cases that contrast more starkly than Justice Robert Jackson's opinion for the Court in West Virginia State Board of Education v. Barnette and Justice Antonin Scalia's majority opinion in Employment Division v. Smith. Although we praise Barnette for its soaring defense of the Free Speech Clause and excoriate Smith for its crabbed reading of the Free Exercise Clause, in fact, Justice Jackson and Justice Scalia are not so far apart. When we read Barnette and Smith in context, we will find that Justice Jackson and Justice Scalia treaded common ground with respect to the First Amendment. …
Justice Scalia And The Commerce Clause: Reflections Of A State Tax Lawyer, Walter Hellerstein
Justice Scalia And The Commerce Clause: Reflections Of A State Tax Lawyer, Walter Hellerstein
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This paper considers Justice Scalia's substantive views of the restraints that the commerce clause imposes on state taxation. My purpose is to examine critically Justice Scalia's dormant or "negative" commerce clause analysis of the state tax issues on which he has opined and to draw from that examination some general conclusions about Justice Scalia's commerce clause jurisprudence.