Justice Scalia, Fainthearted Originalism, and Nonoriginalist Precedent

Justice Scalia’s fascinating interview in New York Magazine has generated a significant amount of commentary. Probably the most important part of the interview for originalism is that Justice Scalia repudiated his view faint hearted originalist view.

You’ve described yourself as a fainthearted originalist. But really, how fainthearted?

I described myself as that a long time ago. I repudiate that.

So you’re a stouthearted one.

I try to be. I try to be an honest originalist! I will take the bitter with the sweet! What I used “fainthearted” in reference to was—

Flogging, right?

Flogging. And what I would say now is, yes, if a state enacted a law permitting flogging, it is immensely stupid, but it is not unconstitutional. A lot of stuff that’s stupid is not unconstitutional.

But what did Scalia mean back when we described himself as a fainthearted originalist?

In the past, there have been two ways of understanding his faint hearted originalism. The narrower way, which I tend to favor, refers to a situation where a judge does not follow the original meaning because he morally disapproves of or otherwise is unwilling to follow the original meaning of the Constitution. Let’s call this the moral disapproval view. The broader way refers to both the moral disapproval view, but adds to it the judge’s willingness to follow nonoriginalist precedents.

In Originalism: The Lesser Evil, Scalia was not entirely clear as to what he meant by faint hearted originalism, although I think the better view is that he meant the narrower view.  Scalia writes:

I can be much more brief in describing what seems to me the second most serious objection to originalism: In its undiluted form, at least, it is medicine that seems too strong to swallow. Thus, almost every originalist would adulterate it with the doctrine of stare decisis – so that Marbury v. Madison would stand even if Professor Raoul Berger should demonstrate unassailably that it got the meaning of the Constitution wrong. (Of course recognizing stare decisis is seemingly even more incompatible with nonoriginalist theory . . . . ) But stare decisis alone is not enough to prevent originalism from being what many would consider too bitter a pill. What if some state should enact a new law providing public lashing, or branding of the right hand, as punishment for certain criminal offenses? Even if it could be demonstrated unequivocally that these were not cruel and unusual measures in 1791, and even though no prior Supreme Court decision has specifically disapproved them, I doubt whether any federal judge-even among the many who consider themselves originalists-would sustain them against an eighth amendment challenge. . . . I am confident that public flogging and handbranding would not be sustained by our courts, and any espousal of originalism as a practical theory of exegesis must somehow come to terms with that reality.

One way of doing so, of course, would be to say that it was originally intended that the cruel and unusual punishment clause would have an evolving content-that “cruel and unusual” originally meant “cruel and unusual for the age in question” and not “cruel and unusual in 1791.” But to be faithful to originalist philosophy, one must not only say this but demonstrate it to be so on the basis of some textual or historical evidence. . . . And if the faint-hearted originalist is willing simply to posit such an intent for the “cruel and unusual punishment” clause, why not for the due process clause, the equal protection clause, the privileges and immunity clause, etc.?

As I think is clear from this discussion, Scalia believes that precedent and an unwillingness to follow the original meaning on moral grounds are both ways of avoiding the alleged excessive strength of the medicine of originalism. Still, I think Scalia restricts the term “faint hearted-originalist” for the moral disapproval situation.

Scalia’s discussion of his abandonment of faint hearted originalism supports this interpretation. Unless Scalia has suddenly abandoned the following of precedent – which is clearly not the case – his claim to have abandoned faint hearted originalism indicates that he does not believe following precedent is part of the faint hearted view.

Of course, Scalia’s discussion still suggests that he regards following nonoriginalist precedent as inconsistent with originalism – see his language of “adulterate” and “even more incompatable” quoted above. That is not my view. I believe, see here and here, that the Constitution allows for precedent and therefore following precedent is neither inconsistent with originalism nor unprincipled.

Mike Rappaport

Professor Rappaport is Darling Foundation Professor of Law at the University of San Diego, where he also serves as the Director of the Center for the Study of Constitutional Originalism. Professor Rappaport is the author of numerous law review articles in journals such as the Yale Law Journal, the Virginia Law Review, the Georgetown Law Review, and the University of Pennsylvania Law Review. His book, Originalism and the Good Constitution, which is co-authored with John McGinnis, was published by the Harvard University Press in 2013.  Professor Rappaport is a graduate of the Yale Law School, where he received a JD and a DCL (Law and Political Theory).

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  1. says

    Mike, I agree with the last sentence of your post. I believe … “that the Constitution allows for precedent” also – if it is applied by the enumeration of Article Vl, the Supremacy Clause. Though, I would say, my problem w/”precedent” is – it depends on who is using it. “Stare decisis” goes by the wayside when someone like progressive Justice Hugo Black would examine the case before him. He doesn’t see “stare decisis” – unless — it follows — his ruling — w/his cohorts as the majority ruling, in the particular case that was before him; so much for “originalism” or “constitutionalism” w/these justices. The additional problem w/”precedent” – is that the justices have not been held accountable for their “behavior/public service” — to the millions of citizens who require a solution to the justice’s actions when they encroach upon, and usurp the Constitution. I believe the Congress does have the power to curb federal court justices rulings that do encroach or usurp the Constitution. We are witnessing a progressiveness w/the so called conservative justices, in power presently. We seem to get the same personal thought processes whether the justices are progressive or (so-called) conservative. Respectfully, John

  2. gabe says

    Perhaps there is something more going on here with Scalia.

    Following quote borrowed from:
    Real “Judgment,” Less “Will”: Why the Supreme Court Should Focus on “Cases” and “Controversies,” Not Rabid Judicial Review
    By Benjamin Clark, September 23, 2013 Nomocracy in PoliticsBlog

    “In United States v. Windsor, discussing when the Court can rightfully declare a law to be unconstitutional, Scalia writes:

    We can do so only when that allegation will determine the outcome of a lawsuit, and is contradicted by the other party. The “judicial Power” is not, as the majority believes, the power “‘to say what the law is,”. . . giving the Supreme Court the “primary role in determining the constitutionality of laws”. . . . In other words, declaring the compatibility of state or federal laws with the Constitution is not only not the “primary role” of this Court, it is not a separate, free-standing role at all. We perform that role incidentally—by accident, as it were—when that is necessary to resolve the dispute before us.”

    So what is he saying in toto?
    Is precedent and / or constitutional “interpretation” to be employed only when absolutely necessary to decide cases and controversies? If so, then he is more originalist than others on the Court (perhaps, with Thomas, the only ones).

  3. gabe says

    The thought occurs to me that these discussion on precedent, etc may be meaningless as it always comes down to interpretation and lawyers can be so “clever” when they want to demonstrate their “intellect” and in so doing destroy that which they claim to preserve. You may be familiar with the following as they come from the Originalism Blog (BTW: to all readers – YOU should check this site out).
    First is Seth Barrett Tillmans late-term abortion of the Origination Clause:
    (read it and see what I mean by “cleverness)


    The second is a response from Andrew Hyman.

    Hyman’s account is somewhat more reducible to plain language construction of interpretation.

    So long as we have clever lawyers being clever, we will always confront problems with any rule of construction, interpretation or precedence / non- precedence.

    Oh well, enough frustration for the day – back to college football and some clever offensive schemes by Oregon & Washington.

    take care

    • says

      Gabe, outside of your first sentence, I agree w/your comparison of Hyman over Tillman. Hyman enumerated the origination clause w/out playing with other thoughts and words.
      (Your first sentence): “The thought occurs to me that these discussions on precedent, etc. may be meaningless…”
      Justice Marshall’s example of concluding that the S.C. had the power to ”form the basis for the exercise of judicial review” and reinterpretation. Marbury v. Madison –ended up as “precedent” – even though the Constitution doesn’t enumerate it. The same happened in the early 1930’s and later by Justice Hugo Black’s “incorporation” of the Establishment Clause into the 14th Amendment.
      I consider the Supreme Court’s interpretations creating “Precedent “ — as encroachment leading to usurpation of the Constitution, and the compact of Federalism.
      Respectfully, John

      • gabe says


        Thanks, I was just being silly for effect. Perhaps in my pension gathering years, I have become “crusty and impatient” but it disturbs me greatly to see the Black Robes use devices such as precedent to simply “reinforce” their (or their predecessors) sometimes willful misreading of the Constitution. Thus, if FIVE, yes just five, persons agree, we must live with it and have no recourse. Absolute nonsense!!!

        take care

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