Scaling Scalia: problems for Scalia’s legal theory

Abstract Antonin Scalia’s theory of judicial interpretation remains highly relevant in the legal landscape. This paper proposes three problems with Scalia’s textualism-originalism that have yet to be adequately addressed in the legal philosophical literature. The problems are consecutively introduced as the Madisonian Problem, the Promulgation Problem, and the Fairness Problem. To explain these problems, I rely upon an understanding of coherent justification conceptualized by Keith Lehrer, and I utilize Feinbergian and Hobbesian modes of analysis. Key components of Scalia’s textualism-originalism will be developed using Scalia’s public discourse as well as Scalia’s dissent in Morrison v Olsen. Following the three problems, to be proposed in the style of the Lehrerian Critic, I will counter objections to my arguments as well as argue against an alternative form of criticizing Scalia.