The hard truth that all bourgeois respectable pundits avoid is that Originalism is the child of the politics of States Rights, as the political rationale for Jim Crow. How bitter is the reality that American Jurists swear not just allegiance, but fealty to an idea that has its root in post Civil War America, that produced the Klu Klux Clan as enforcer of that practice of States Rights! Its an ugly history of the enforcement of political conformity by terror, nothing less, with racism at its core!
The revival of States Rights, renamed, transmogrified and or grafted on to Originalism post Brown v Board of Education I & II is one of the marvels of America’s Public Relations revolution: all about the care and maintenance of political respectability. And certainly Antonin Scalia’s judicial career was fully vested in that re-framing of American racism.
See The Partisan by John A. Jenkins :
And John Dean’s Book The Rehnquist Choice:
for confirmation of the part played by Brown I & II in the political rise and legitimization of Originalism, and the careers of Rehnquist and Scalia as the first two Orginalists on the Supreme Court.
Antonin Scalia was a caricature of an Old World Paterfamilias: a bully who wielded a power that he judged unquestionable, and when it was questioned he lashed out, not with wit, but with the snarling, belittling patois of the old neighborhood. Not a legal giant but a small man in every way. A Neo-Confederate Originalist and an ultramontain Catholic, who disdained the whole of the 20th Century. He was Opus Dei personified, in an American context, both political and religious. See Joan Biskupic’s near fawning biography of Scalia for historical background.
Also see Bruce Allen Murphy’s essay titled ‘Scalia’s an Originalist When It’s Convenient’:
‘When I teach about the First Amendment Free Exercise of Religion at Lafayette College, which used to occupy a routine pair of classes, I now wheel into the classroom a large white board that will occupy us for weeks, filled with all of the exceptions that the Court has created here restoring, in piecemeal fashion, the pre-Scalia, 1990 decision, world. I explain what has become the “Swiss Cheesing” of the First Amendment’s Free Exercise clause, allowing, among others, for claims to be considered for exceptions for federal prisoners and others being held in government institutions, for a religious group in Hialeah, Florida seeking to sacrifice animals in religious ceremonies, and for a small religious group seeking to drink ceremonial hallucinogenic tea from the Amazon. The string of exceptions to Scalia’s Smith rule has created so many holes that there is almost no cheese left. After the Hobby Lobby decision, I will have to make one more change to the top of my board, one which risks doubling the number of exceptions, adding next to the words “person’s Free Exercise of Religion rights,” the phrase “and closely-held corporations’ religious rights” ‘ – See more at: http://historynewsnetwork.org/article/156300#sthash.E4aYsaWS.dpuf