Two Kinds of Originalism

Steven F. Hayward

National Affairs | 2017

Scalia and Thomas represent two different varieties of constitutional originalism that inform a vigorous debate over jurisprudence among conservatives. Thomas thinks the Declaration of Independence and the natural-law teaching it expresses are an authoritative guide for judges, a view that is described as “judicial activism” of the right. Scalia, while agreeing with Thomas about the content of the natural-law tradition, thinks proper judicial restraint comes from confining judging closely to the written text of the Constitution, the known views of the founders, and the operating language of statutes. Anything beyond the text invites the kind of judicial activism that favors liberalism. The argument among conservatives over this point is often more heated than the argument with liberalism’s “living Constitution.”

Image courtesy William Fitz-Patrick, The White House

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