Compare And Contrast The Originalist Theory Of Jurisprudence

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The arguments pro et contra the originalist theory of jurisprudence really come down to a disagreement of ideas. These ideas can only be attacked at abstract levels of interpretation,and speak toward the a priori intent of the theory to provide justification for decision. It is when the act of the decision is carried out that the more concrete examples of inconsistencies within an originalist theory present themselves a fortiori . As such, the focus must now be on analyzing Supreme Court cases that Justice Scalia has written either a majority opinion or a dissenting opinion on to see if his originalist theory holds up to scrutiny.
In Prinz v. United States, the slim (5-4) majority of the Supreme Court held that the Brady Handgun Violence …show more content…

In addition, the earlier Legislatures could have assumed that their goals could be achieved by direct federal action. Both of these theories hold just as much weight as an orginalist interpretation of the intent of historical congressional action. Consequently, to infer that earlier congressional inaction is a result of intent, is to assume that originalism is the only way to interpret the action. Thus, it is to assume the truth of one competing theory at the exclusion of many others. The absence of a specific law at a particular time does not translate into a mandate for unconstitutionality.
In presenting Justice Scalia 's majority opinion in Prinz v. United States, it is obvious that, using the principles of originalism, is no more than taking history out of context to support a conclusion that appears consistent only to support a predetermined conclusion. Justice Scalia 's brand of originalism only uses history when it supports a particular conclusion, and denies it when it doesn …show more content…

To extend his use of orginalism, it is easy to see that landmark Supreme Court cases such as, Brown v. Board of Education of Topeka, were wrongly decided, because the same historical Congress that approved the Fourteenth Amendment is the same Congress that enacted laws to segregate the public schools of the District of Columbia. In the word 's of Justice Scalia 's originalism, as evident in his dissent in United States v. Virginia, the Constitution provides no protection for women under the Equal Protection Clause (United States v. Virginia, 567). This seems very hard to fathom, that any interpretation of the Constitution that claims a case of the magnitude of Brown v. Board of Education of Topeka, or that women are not entitled to equal protection, is correct. One can only hear Justice Scalia 's response to this critique to be similar to any critique of his originalism, “[a]nyway, that’s my view. And it happens to be correct” (qtd. in Murphy,

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