Text and Originalism

Abstract Scalia is originalism and textualism’s most visible advocate—as is evident in his being taken as the model jurist for the appointment of justices Gorscuh, Kavanaugh, and Barrett—even while his interpretation of text was driven by his unwritten ideas. Scalia sought to limit judicial discretion, which is why he turned to text and original meaning. Much like Justice Black’s textual jurisprudence, Scalia’s jurisprudence of original meaning is rooted in unwritten understandings about democracy and the nature of the judiciary that are not obviously drawn from text. While Scalia frequently chastised his colleagues for departing from the Constitution, his quarrels with them were largely over unwritten understandings and ideas that we can see when we turn to his opinions regarding Fourteenth Amendment due process.