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Desperately Seeking CertaintyThe Misguided Quest for Constitutional Foundations$
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Daniel A. Farber and Suzanna Sherry

Print publication date: 2002

Print ISBN-13: 9780226238081

Published to Chicago Scholarship Online: March 2013

DOI: 10.7208/chicago/9780226238104.001.0001

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The Formalist Crusade of Antonin Scalia

The Formalist Crusade of Antonin Scalia

Chapter:
(p.29) Chapter 3 The Formalist Crusade of Antonin Scalia
Source:
Desperately Seeking Certainty
Publisher:
University of Chicago Press
DOI:10.7208/chicago/9780226238104.003.0003

This chapter describes Antonin Scalia's orginalism, which is distinctive in several respects and is more concerned with restricting judicial lawmaking than with the value of popular sovereignty. It is not believed that Scalia has successfully resolved the internal tensions in his thinking. His recent theoretical writings seem to have reverted to a more simplistic version of originalism. His best-known opinion on the separation of powers is his dissent in a case concerning the constitutional status of the independent counsel. Originalism plays a limited role in some of Justice Scalia's most notable opinions despite its centrality in his thinking about judicial review. Hence, despite his views on originalism, he has tended in practice to invoke entrenched interpretations of constitutional provisions by either the Court itself or by long-standing public consensus.

Keywords:   Antonin Scalia, lawmaking, originalism, judicial review, constitutional provisions

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