Dispatches from the Creation Wars

Over at the VC, David Bernstein has a quick analysis of the Raich decision that includes this statement:

Justice Scalia’s concurrence, unlike Justice Thomas’s dissent, does not address the original meaning of the Commerce Clause. This reflects a pattern with Scalia, apparent also in his affirmative action, First Amendment, and other opinions: he is much more likely to resort to originalist arguments when they can be used to undermine Warren Court precedents that conflict with his deeply held moral and political views than when such arguments would either undermine his political views or challenge precedents that are not on the social conservative (tempered, as in First Amendment cases, by Scalia’s academic elitist solicitude (which I share) for freedom of expression) “hit list.”

Bingo. For Scalia, far too often, originalism is a useful both as rhetorical strategy and as a tool with which to beat up those he disagrees with. But when the logical outcome of originalism is contrary to his goals, originalism goes right out the window. Thomas is far more consistent.


  1. #1 Matthew
    June 6, 2005

    And that’s exactly what “judicial activism” should be defined as. When one’s ideology takes primacy over the rule of law.

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