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Scalia's Infidelity: A Critique Of "Faint-Hearted" Originalism, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

In this essay, based on the 2006 William Howard Taft lecture, the author critically evaluates Justice Antonin Scalia's famous and influential 1988 Taft Lecture, entitled Originalism: The Lesser Evil. In his lecture, Justice Scalia began the now-widely-accepted shift from basing constitutional interpretation on the intent of the framers to relying instead on the original public meaning of the text. At the same time, the essay explains how Justice Scalia allows himself three ways to escape originalist results that he finds to be objectionable: (1) when the text is insufficiently rule-like, (2) when precedent has deviated from original meaning and …