In the end, Scalia's argument is that judges professing originalism are less likely to "mistake their own predilections for the law." Unless, it's the Major Questions Doctrine; Purcell Doctrine; Fundamental Principle of Equal Sovereignty (Shelby County); Limits on Voting (Brnovich v. DNC); Time Limit on the Voting Rights Act Section V (Shelby County); Firearms (Heller, Bruen, exclude all cases that don't fit the conclusion).
No objective support is provided for this claim.

Flow of Article

Scalia states that non-originalist opinions are "apply[ing] current societal values" in place of "the meaning of the Constitution".
Provides two examples: Humphrey's Executor v. United States and Home Building and Loan Association v. Blaisdell.
Allows evolutionary intent in 8th Amendment, and posits why not due process clause, the equal protection clause, the privileges and immunity clause, etc.?
When one goes down that road, there is really no difference between the faint-hearted originalist and the moderate nonoriginalist, .... (862) [emphasis added] [ Scalia drops the subject immediately.] "The practical defects of originalism, on the other hand, while genuine enough, seem to me less severe."
Hence, the title...but there is really no difference
That ... is the real dispute that appears in the case [Thomason v. Oklahoma: death penalty for minors] not ... concerning the validity of looking at all to current values; but rather ... concerning the nature and degree of evidence necessary to demonstrate that constitutional evolution has occurred. (864) [meaning is not fixed]

See also Our Perfect Constitution

2023-09-25: Scalia Originalism: The Lesser Evil 1989

Table of Contents