Antonin Scalia, Living Constitutionalist

Cass R. Sunstein 

Harvard Law School

April 6, 2016

Harvard Law Review, Forthcoming 

Harvard Public Law Working Paper No. 16-15 

Abstract:      

Justice Antonin Scalia was a vigorous defender of originalism, but in some of his most important opinions, he was a superb practitioner of living constitutionalism. Two of the best examples are his majority opinions in Lujan v. Defenders of Wildlife (involving standing) and Lucas v. South Carolina Coastal Council (involving “takings”). His affirmative action opinions fall in the same category, and District of Columbia v. Heller, though written in originalist terms, can easily be seen as a moral reading of the Second Amendment. One lesson involves the gravitational pull of precedents, which can draw judges away from their preferred methodologies. The larger lesson is that moral readings of the Constitution are exceptionally difficult to avoid in specific cases, even for judges who abhor them in general.

Full text available here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2759938