ANTONIN SCALIA AND THE LIMITS OF JUDICIAL ACTIVISM: AN ANALYSIS OF ORIGINALIST TEXTUALISM

Abstract

This study addresses the debate surrounding constitutional jurisdiction and judicial activism in contemporary democracies, focusing on the interpretive proposal of Antonin Scalia’s originalist textualism. The purpose is to examine how this hermeneutical technique can function as a limit to the expansion of judicial power, preserving the separation of powers and democratic legitimacy. The research adopts a deductive method, relying on a bibliographic survey of classical and contemporary works (Scalia, Waldron, Maus, Dworkin, Tribe, among others) and a qualitative analysis of their arguments, contrasted in a critical-comparative perspective. The results indicate that originalist textualism emerges as a tool for containing judicial activism, by binding judges to the public meaning of the constitutional text and reducing the scope of decisions grounded in personal preferences. Nevertheless, the findings also highlight its limitations, as it does not eliminate the need for value-laden choices and may restrict the constitutional adaptation to emerging social demands. The study concludes that, although Scalia’s textualism is not immune to criticism, it contributes to strengthening legal certainty and reasserting the Legislature as the privileged locus of democratic deliberation.