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57 U. Cinn. L. Rev. 849 (1988-1989)
Originalism: The Lesser Evil

handle is hein.journals/ucinlr57 and id is 859 raw text is: ORIGINALISM: THE LESSER EVIL*

Antonin Scalia**
This series of lectures is dedicated to the memory of Chief Justice
William Howard Taft, an extraordinary man by any standard. A
state trial judge at twenty-nine, Solicitor General of the United
States at thirty-two, a United States CircuitJudge at thirty-four, Pro-
fessor and Dean at the University of Cincinnati Law School, High
Commissioner of the Philippines, Secretary of War, President of the
United States, and Chief Justice of the United States. When a Jus-
tice of the Supreme Court is invited to give this lecture, I presume it
is the great man's judicial career that is expected to be at least the
jumping-off point for the discussion. That also happens to be the
part of his diverse life that Taft himself most valued, judging by a
statement he made at the time of his nomination to the ChiefJus-
ticeship (not only an appropriate modesty but even a fear of the Al-
mighty gives me some pause at quoting this): I love judges, and I
love courts. They are my ideals, that typify on earth what we shall
meet hereafter in heaven under a just God.'
Taft is generally acknowledged to have been one of the greatest
Chief Justices-not so much on the basis of his opinions, perhaps
because many of them ran counter to the ultimate sweep of history.
One commentator observes condescendingly:
Taft's Chief Justiceship might have been constructive, but
for his haunting fear of progressivism and progressives. Had
he maintained the powerful position he assumed in his com-
merce cases and minimum wage dissent, Adkins v. Children's
Hospital, 261 U.S. 525 (1923), he might have, with the backing
of Holmes, Brandeis, Stone, and possibly Sanford, swung the
Court along the line the great triumvirate was so eloquently
staking out. Lacking in William Howard Taft was the quality
Woodrow Wilson suggested as an essential requirement of
statesmanship-a large vision of things to come.2
This is presumably the school of history that assesses the greatness
of a leader by his success in predicting where the men he is leading
want to go. That is perhaps the way the world ultimately evaluates
© 1989 by Antonin Scalia. All rights reserved.
* This address was delivered on September 16, 1988 at the University of
Cincinnati as the William Howard Taft Constitutional Law Lecture.
** Associate Justice, United States Supreme Court.
1. Mason, William Howard Taft, in 3 THE JUSTICES OF THE SUPREME COURT 1789-
1978 2105 (L. Friedman and F. Israel ed. 1980).
2. Id. at 2120.


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