Bench Memos

Scalia and Thomas on Originalism

Unlike Ed Whelan, I finally caught up with the five parts of Peter Robinson’s interview of Justice Antonin Scalia on Uncommon Knowledge.  Justice Scalia is in fine form, and Peter’s questions are excellent.  I was particularly interested in the justice’s views on stare decisis (part 3, or 4? I can’t remember).  It was good to hear him say, for instance, that the “incorporation” of the first ten amendments into the Fourteenth, so as to apply against the states, is based on what he views as false history.  I was sorry to hear him say it’s “too late in the day” to do anything about it.  But maybe he will hold fast against repeating and extending the error, and will argue and vote against “incorporating” the Second Amendment against the states after last year’s Heller decision, as the justices will surely be invited soon to do.  (Yes, I hear someone saying that I would say that because I think Heller was wrongly decided.  But I’d say it even if I thought it rightly decided.)

Readers may also want to watch a speech given last Monday evening at Washington & Lee University by Justice Clarence Thomas.  Sounding similar notes on originalism (it’s either that or “making it up,” he says), Thomas humbly claims he has only “a bit part . . . in the preservation of liberty,” and exhorts us all to think about whether we have earned the sacrifices others have made for our freedom.  (Link via NLT from my friend Lucas Morel of W & L, also here at Princeton with me this year.)

Matthew J. Franck — Matthew J. Franck is the Director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute in Princeton, New Jersey.

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