合衆国最高裁におけるA.スカーリア判事の足跡

──「臆病な原意主義者」が遺したもの──

抄録

Justice Antonin Scalia passed away on February 13, 2016. He described himself as both an originalist and a textualist. His originalism based on the contextualism belongs to the new originalism in the point of that it regard the constitutional language as the original meaning, but his originalism differs from the new originalism in the point of that it does not admit the distinction between constitutional interpretation and constitutional construction. His originalism embraces the textualism as far as it puts a weight the meaning of language. Furthermore, he practiced his methodology in the cases relating to the government institutions (separation of powers, federalism) and the individual rights. Thanks to his effort in the theory and practice of originalism, he succeeded in restoring the contextualism and originalism. It can be a legacy of Justice Scalia. Besides that, his originalism can be seen as a tool that realizes “the idea of founding.”