Antonin Scalia and American Constitutionalism: The Historical Significance of a Judicial Icon

Abstract

Edward A. Purcell's Antonin Scalia and American Constitutionalism is a comprehensive critique of U.S. Supreme Court justice Antonin Scalia's constitutional decision making. Although Purcell occasionally overreaches, he presents a tightly organized, thoroughly researched, and often devastating case against his iconic subject. Purcell's thesis is easily summarized: Justice Scalia “regularly twisted, ignored, and abandoned his self-proclaimed methods and principles to reach the political, social, and ideological results he sought” (p. 294). In Purcell's account, Scalia's opinions on the separation of powers, federalism, racial issues, religion, property rights, gun rights, police searches, and other constitutional issues are best explained by Scalia's conservatism, not by his vaunted originalism—his view that provisions of the Constitution should be interpreted in accordance with the meaning that they carried when ratified. Purcell is most persuasive when scrutinizing Scalia's separation-of-powers opinions (those regarding the division of powers between the three branches of the federal government) and federalism opinions (on distributing power between the federal government and the states). He cogently contends that Scalia's opinions limiting congressional power to enable individuals to sue to enforce federal regulatory statutes and to impose duties on state officials to enforce federal law outright contradict historical evidence—including evidence from sources such as the Federalist Papers upon which Scalia relied in other opinions. Most of Purcell's critiques are similarly incisive and well supported. Another standout examination is his analysis of Scalia's affirmative action opinions. These opinions lack discussion of original meaning but closely track Scalia's personal opposition to affirmative action, which Purcell documents.