Abstract: This short essay, part of an online symposium on Justice Scalia, assesses Scalia’s contributions to constitutional theory, especially the theory of constitutional interpretation. Drawing on some recent biographies, I argue that Scalia repeatedly deployed a rhetorical strategy known as preemptive argument. A preemptive argument attempts to occupy the argumentative terrain so that counter-arguments cannot get off the ground. Scalia made two preemptive moves that were highly influential – that original public meaning was sharply different from original intent and that the debate between contending positions in constitutional interpretation is best characterized as originalism versus nonoriginalism. I contend that both moves had a deleterious impact on the progress of American constitutional theory. I conclude with some thoughts on why Scalia often seemed so negative on the progress of American constitutionalism in general.
Publication Year: 2016
Publication Date: 2016-01-01
Language: en
Type: article
Access and Citation
AI Researcher Chatbot
Get quick answers to your questions about the article from our AI researcher chatbot