Antonin Scalia

Anyone with even a passing interest in jurisprudence should read Margaret Talbot's excellent New Yorker profile of Supreme Court Justice Antonin Scalia, the most conservative, most outspoken, and most intelligent of the justices. Scalia classifies himself as an "originalist" -- one who not believes that judges should adhere to the precise words of the Constitution, but also, according to Talbot, "believes that the meaning of those words was locked into place at the time they were written." Talbot posits that Scalia's literalist interpretation of the Constitution is a product of the New Criticism which dominated English and American critical theory through the end of the 1950's (Scalia's father Eugene earned a Ph.D. at Columbia and worked as a language professor and translator at Brooklyn College) -- a critical approach whose efficacy was whittled, like originalism itself, by the increasing influence minority and gender studies. Talbot questions how Scalia might have voted in the Brown vs Board of Education decision, in which the Court's opinion shaped judicial policy for the next 40 years (for the record, Scalia says that he "would have voted with the majority in Brown"). More importantly, Talbot wonders whether living judges using the Framers' original intention was even the Framers' intention:

The Constitution, it should be noted, does not stipulate th rules for its interpretation -- and the idea that the framers would have welcomed scrutiny of its provisions in the light of changed circumstances is at least as plausible as the notion that the framers intended to freeze, for all time, the meaning of due process or cruel and unusual punishment [two more Court decisions from which Scalia has dissented]

Thomas Jefferson would have agreed.