Justice Scalia’s enormous influence was not on actual case outcomes, at least not directly. For someone who sat on the court for three decades, he wrote few significant majority opinions. What he did was change how we talk about the law.
Most Americans care about whether the Constitution protects abortion rights or prohibits affirmative action, whether Obamacare is unconstitutional or what free speech means. But
whether the Constitution should be interpreted according to its original meaning or according to precedent, whether we should take evolving values or Rawlsian philosophy or neither into account, how we should use legislative history when interpreting statutes — these used to be issues only lawyers, judges and scholars thought about.
Today, journalists, radio talk show hosts and regular news junkies all talk about constitutional theory. And when they do, there
is originalism and then there is everything else. No one is more responsible for the
originalism “movement” than Justice Scalia. He made constitutional theory sexy.
To liberal legal scholars, originalism looked dead by the middle of the 1980s. Academics had argued that there was just no reliable way to figure out the intentions of long dead people about matters they had never thought about. And in 1985, a famous paper by the constitutional historian H. Jefferson Powell showed that people like
James Madison and Alexander Hamilton didn’t themselves believe that later interpreters should seek guidance in their intentions. Originalism seemed to be at war with itself.
Justice Scalia was among the first to argue that constitutional interpreters
should not be interested in the intentions of the framers but in the original meaning of the words they used. Original meaning turned out to be a life vest for the theory, keeping it afloat among conservative legal scholars and even some liberal ones.
Meanwhile, Justice Scalia took to the streets and gained a following. He was unrelenting and always on message. He was a single-issue constitutional theorist, and his issue was originalism. For Justice Scalia and his fans, you viewed modern issues through an 18th-century quizzing glass or else you were an “activist.” There was no in between.
His laser-sharp dissents garnered a lot of attention, but he didn’t just talk through his opinions. He talked to lawyers and to legions of law students, using his charisma and the simplicity of his message to recruit foot soldiers who could peddle his message through organizations like the Federalist Society.
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Liberals, meanwhile, have struggled to rally around a coherent alternative language in which to talk about the Constitution. We have been Hillary Clinton to Justice Scalia’s Bernie Sanders. Some of us promoted something called popular constitutionalism. (What’s that, you say?) Others settled on “minimalism.” Others simply gave up and have tried to argue that originalism actually supports progressive outcomes. Trying to coopt Justice Scalia’s message is the highest compliment we have paid him.
http://www.nytimes.com/2016/02/15/o...region=span-abc-region&WT.nav=span-abc-region
*a must read*
it's not 'original intent', it's original text (meaning-words)
^ My comment
