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Contribution to Book
The Sting of Originalism: Defending Legislating from the Bench
Justice and Law (2009)
  • Remington Gregg, New York Law School
Abstract

This paper explores a specific theory of judicial interpretation called original meaning. The theory’s most vocal proponent has been Associate Justice Antonin Scalia. Judges who follow originalism remain loyal to the original meaning of the Constitution by ensuring that judges are restrained from making law based on personal predilections or biases that impair their judicial decisions. I will first explore whether originalism is historically congruent with a theory of interpretation that the “Framers” of the American Constitution envisioned.

This paper will additionally present an alternative theory of interpretation called the empowerment principle, which permits judges to make law based on a theory of interpretation that protects the constitutional rights of the American people regardless of whether or not those principles are specifically written into the Constitution.

Justice Antonin Scalia argues that originalism is the best theory of constitutional interpretation because it prevents judges from “legislating from the bench,” a phrase coined to describe how judges have overturned law thereby making new law. This paper will not argue that judges should be permitted to undermine the legislative branch of government by changing laws they feel are personally wrong. However, the concept of judges legislating from the bench is not as bad as it sounds. When a law that so egregiously undermines our constitutional principles goes unchanged by the legislature for decades, it may be appropriate for a judge to make new law.

Publication Date
2009
Editor
Steven P. Scalet
Publisher
Global Academic Publishing
ISBN
978-1-58684-272-7
Citation Information
Remington Gregg. "The Sting of Originalism: Defending Legislating from the Bench" Binghamton, New YorkJustice and Law Vol. 2 (2009)
Available at: http://works.bepress.com/remington_gregg/3/