Researcher ORCID Identifier
0009-0008-7190-5612
Graduation Year
2026
Date of Submission
4-2026
Document Type
Campus Only Senior Thesis
Degree Name
Bachelor of Arts
Department
Philosophy
Reader 1
Paul Hurley
Terms of Use & License Information
Rights Information
© 2026 Elizabeth B Barry
Abstract
Justice Scalia is foremost remembered as being one of the most tenacious originalists on the court in recent decades. In spite of this, he frequently offered puzzling legal rulings that appeared to contradict his own originalist philosophy. His seemingly incoherent interpretive theories and legal rulings invited criticisms by the many scholars and justices who could not fathom his perspective. This project is motivated by my view that scholars have been mischaracterizing Scalia’s interpretive approach to constitutional law, which has led them to critique his view on weak grounds and has prevented us from extracting the full nuance behind his theories. Drawing on philosophical distinctions, I argue that Scalia’s originalism ought to be understood as an ideal theory that he made exceptions to when faced with non-ideal cases. Once we fully appreciate his fundamental commitment to democracy and separation of powers, it becomes clear why his originalism must consist of this form that I refer to as “rule of law originalism." After understanding his interpretive approach as rule of law originalism, the puzzling aspects of his legal opinions begin to make sense, and some of his common criticisms begin to unravel. Finally, I contrast Scalia’s unique form of originalism to that applied by Justice Thomas and argue why the former is more plausible and attractive as an approach to the law.
Recommended Citation
Barry, Elizabeth, "Rule of Law Originalism: A Re-Examination of Justice Scalia’s Interpretive Approach to Constitutional Law" (2026). CMC Senior Theses. 4224.
https://scholarship.claremont.edu/cmc_theses/4224
This thesis is restricted to the Claremont Colleges current faculty, students, and staff.
