Bridging the Divide between Justice Breyer’s Progressivism and Justice Scalia’s Textualism: Introducing the Concept of “Negative Originalism” to Guide Constitutional Interpretation in “Values Based” Adjudication


This Article examines the United States's Supreme Court's reliance upon foreign sources of law when adjudicating "values based" cases. In particular, the Article analyzes the Court's decision in Lawrence v. Texas, with particular emphasis upon the interpretive approaches utilized by Justices Breyer ("progressivism") and Scalia ("originalism") in arriving at their respective decisions. Based upon such examination, including the efficacy of relying upon foreign sources of law to support domestic constitutional decisions, this Article proposes a new interpretive paradigm, entitled "negative originalism", which strives to ensure fidelity to the Constitution's original purposes and objectives, while allowing courts sufficient flexibility to fashion equitable decisions based upon evolving social, cultural and political perspectives.


Constitutional Law

Date of this Version

January 2007