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Slavery As Punishment: Original Public Meaning, Cruel And Unusual Punishment, And The Neglected Clause In The Thirteenth Amendment, Scott W. Howe

Scott W. Howe

Steadfast originalists agree that the original meaning of our constitution's language, once found, should be followed, even when it leads to unhappy outcomes. Yet, in a famous lecture in 1989, Justice Scalia, a leader in the modern originalist movement, cast doubt on the duty of fidelity to originalism. He asserted that the originalist judge can appropriately avoid outcomes that are "too bitter" either by deferring to precedent or by temporarily abandoning originalism. Ironically, libertarian and liberal originalists have been among the most dismissive of Justice Scalia's faint-heartedness. They contend that the problem is the narrow approach to originalism that Justice …