The
Minnesota Law Review has sponsored a valuable online symposium on Justice Scalia’s
career. I was honored to
be a part of the symposium. My essay
concerns Justice Scalia’s most distinctive contributions to constitutional
theory. Drawing on recent biographies of
the Justice (and some of my Balkinization posts on originalism), I argue that Scalia’s tendency to employ “preemptive” arguments –
arguments that attempt to anticipate the most likely objections before they are made – had
a deleterious impact on the progress of constitutional theory. I hope to expand on the essay in a future
post.