Scalia's "Originalism"
June 06, 2005
The absence of a statement sometimes is itself a statement. If there was ever any doubt whether Justice Scalia's originalist methods control his judicial outcomes or whether his desired outcomes dictate the application of originalism, read his ten-page concurring opinion. Not once does he mention an original understanding of the Commerce or Necessary and Proper clauses. Then read Justice Thomas's dissent, which beautifully explicates the original meaning of the Necessary and Proper Clause.
Sadly, there is only one Supreme Court Justice with a chest.
UPDATE: David Berstein eloquently exposes Scalia's "originalism":
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."