Cover

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Title Page, Copyright, Dedication

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pp. i-vi

Contents

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pp. vii-viii

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Acknowledgments

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pp. ix-xiv

The conceptual roots of this project—and my interest in the jurisprudence of Antonin Scalia—began many, many years ago. During that time, several scholars mentored me: James Arnt Aune, Leroy Dorsey, J. Michael Hogan, John Murphy, and Vanessa Beasley. These scholars cut across time and institutions. Jim Aune taught me that I could, and should...

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Introduction

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pp. 1-8

In the mid-1980s, a rumor floated that President Ronald Reagan was considering Robert Bork and Antonin Scalia for a Supreme Court vacancy. One day, as Scalia tried to enter an elevator in a parking garage, a security detail blocked his entrance. “I’m sorry, sir,” one of the security team stated, “This elevator is being held for Attorney General Edwin...

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1. Textualism as a Response to the “Living” Constitution

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pp. 9-23

As can be observed through accounts following his death, Scalia consistently articulated a particular way to interpret the Constitution. His advocacy helped constitutional interpretation become one of the most important issues facing the United States today. The debate about forms of constitutional interpretation remains important, because it perpetuates...

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2. Textualism in Scalia’s Speeches and Extrajudicial Writings

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pp. 24-50

In every speech he delivered and in every essay or book he wrote, Scalia constructed a narrative in which the Constitution has a limited range of meaning and was not created to respond to shifting public needs. In an earlier time Americans understood the limited meaning of the constitutional text, Scalia tells us, and to alter that meaning...

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3. Interpreting a Clear Clause: The Eighth Amendment’s Cruel and Unusual Punishments Clause

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pp. 51-71

The Eighth Amendment declares, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Eighth Amendment jurisprudence has a long and storied history. In more years than not, the court accepts cases challenging laws and practices as a violation of the Cruel and Unusual Punishments...

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4. Interpreting Competing Clauses: Mediating Religion between the Establishment and Free Exercise Clauses

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pp. 72-96

The First Amendment begins, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Although the Establishment Clause comes first in the text, notable constitutional historians argue that the Establishment Clause was ratified to protect the free exercise...

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5. When the Constitution Is Silent: Rejecting the Right to an Abortion

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pp. 97-115

The Constitution does not mention a right to an abortion. How, therefore, did the Supreme Court reach its decision in Roe v. Wade (1973) that the US Constitution guarantees a woman a right to an elective abortion? Although few people other than constitutional scholars are aware of its genesis, the right to an abortion did not begin with the human body...

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Conclusion: Scalia’s Opportunistic Textualism

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pp. 116-128

I set out in this book to consider what a textualist reading of the law would look like in different areas of the law. To that end, I offer here a brief thought experiment. I propose a summary of what a textualist reading of the three areas of law might look like and then offer a brief summary of the interpretive moves Scalia...

Notes

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pp. 129-144

Bibliography

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pp. 145-154

Index

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pp. 155-162