Limits of Constraint: The Originalist Jurisprudence of Hugo Black, Antonin Scalia, and Clarence Thomas

The book "Limits of Constraint: The Originalist Jurisprudence of Hugo Black, Antonin Scalia, and Clarence Thomas" challenges the idea that originalism is a theory that constrains legal decision-making in a clear and objective manner based on the text and original meaning of the Constitution. It argues that originalists have not had the same views on constitutional issues, calling into question the theory of originalism. The book examines the originalist jurisprudence of these three prominent Supreme Court originalists and finds that they have arrived at different conclusions in many constitutional areas, including executive power and the administrative state. It suggests that originalism in actual practice does not deliver on its promise of an objective jurisprudence free of personal philosophy and discretion.

Format: Hardback
Length: 448 pages
Publication date: 29 July 2022
Publisher: University Press of Kansas

Adherents of originalism often present it as a theory that constrains legal decision-making in a clear and objective manner that is based on the text and original meaning of the Constitution, in contrast to the supposedly subjective and "activist" jurisprudence of those who promote a living Constitution. But originalists have not had the same views on constitutional issues, calling into question the theory of originalism.

Limits of Constraint examines the originalist jurisprudence of Hugo Black, Antonin Scalia, and Clarence Thomas, showing that three of the Court's originalists have arrived at different conclusions in many constitutional areas. While the starkest contrast is between Justice Black and Justices Scalia and Thomas, even the latter two justices have disagreed on several key issues, including executive power and the administrative state. James Staab shows that originalism in actual practice does not deliver on its promise of an objective jurisprudence free of personal philosophy and discretion.

Rather than rehash theoretical debates about the merits of originalism, Limits of Constraint examines originalism in operation by focusing on the judicial opinions of three prominent Supreme Court originalists: Hugo Black, Antonin Scalia, and Clarence Thomas. If the analysis of this book is correct—that is, the results reached by Justices Black, Scalia, and Thomas are divergent across a wide array of constitutional areas—then originalism promises more than it can deliver.

One of the fundamental claims made by originalists is that their theory of constitutional interpretation limits judicial discretion, but originalism does not constrain judicial behavior as much as its defenders claim.

Originalists argue that the Constitution should be interpreted according to its original meaning, as understood by the framers and ratifiers. They believe that judges should be bound by the text of the Constitution and should not rely on their own personal beliefs or interpretations. This approach is often seen as a way to ensure that the Constitution is applied consistently and fairly across different cases and that judges are not allowed to make arbitrary decisions.

However, originalists have not always been consistent in their application of the originalist theory. For example, in the case of Roe v. Wade, which legalized abortion nationwide, Justice Black, who was an originalist, argued that the Constitution did not grant women the right to an abortion. Justice Scalia, who was also an originalist, argued that the Constitution did grant women the right to an abortion. This disagreement highlights the fact that originalism is not a rigid or inflexible theory, and that judges may arrive at different conclusions based on their own personal beliefs and interpretations.

Another issue that has been raised by critics of originalism is that it can lead to a narrow and rigid interpretation of the Constitution. Originalists argue that the Constitution should be interpreted in a narrow and literal sense, without any consideration for the changing social and political landscape. This approach can lead to decisions that are out of touch with modern society and that fail to protect the rights and freedoms of individuals.

For example, in the case of Brown v. Board of Education, which ruled that segregation in public schools was unconstitutional, originalists argued that the Constitution did not permit the segregation of students based on race. However, this interpretation failed to recognize the social and economic consequences of segregation and the fact that it was a form of discrimination against African-American students.

In conclusion, originalism is a theory that seeks to limit judicial discretion and ensure that the Constitution is interpreted according to its original meaning. While originalists argue that this approach can lead to a more consistent and fair interpretation of the Constitution, critics argue that it can lead to a narrow and rigid interpretation of the Constitution that fails to protect the rights and freedoms of individuals. It is important to consider the merits of originalism and to ensure that judges are able to interpret the Constitution in a way that is consistent with the changing social and political landscape.

Dimension: 229 x 152 (mm)
ISBN-13: 9780700633302