Exam Type: No Exam
Very short reaction papers and participation in class discussions will be required and evaluated for a part of your grade. A five-page paper at the end of the semester will be required as well.
What will be Justice Scalia's most important legacy to constitutional law? Upon his death, eulogists focused on his supposed “method” – originalism and textualism. Others described his happy warrior personality, the life he breathed into constitutional argument. The latter is precious and can never die. The former was dead on arrival.
No one mentioned his greatest legacy – the constitutional populism he adumbrated, mostly in his dissents.
In this class, we will begin with the “originalist” opinion in Heller, analyzing its emptiness. Then, we’ll look at a few long-celebrated “great dissents” by liberal justices. Finally – and for most of the semester – we’ll analyze Scalia’s populist dissents, one by one, and consider affirmative judicial initiatives and open-ended populist principles of law that might spring from them.