Justice Scalia Got It Right, But for the Wrong Reasons: Scalia’s Recognition of the Supreme Court’s “Southern Exception” in U.S. Constitutional Jurisprudence and the Connection of “Southern Exceptionalism” to “American Exceptionalism"

Authors

James D. Wilets, Nova Southeastern University College of Law

Abstract

The late Justice Scalia has repeatedly and sardonically noted that the Supreme Court has discounted the views of Southern states in determining whether there is a consensus among the states with regards to a Constitutional norm. This Article has termed that Supreme Court position as “Southern Exception” and can be viewed as an effort by some Justices to address the unique social, economic, religious and cultural traditions in the South engendered by its unique" and “exceptional” history. This Article will also explore how this "Southern Exception" affected American jurisprudence to the point of rendering it "exceptional" from much of the world's jurisprudence, essentially turning the traditional use of the term "American Exceptionalism" on its head. This Article will also explore the connection between the hostility of Justice Scalia and some other Justices to this “Southern Exception” and their hostility to the use of international and comparative law in general, particularly when used as a means to circumvent the traditional requirement of a “national consensus” to establish a constitutional norm.

Recommended Citation

James D. Wilets, Justice Scalia Got It Right, But for the Wrong Reasons: Scalia’s Recognition of the Supreme Court’s “Southern Exception” in U.S. Constitutional Jurisprudence and the Connection of “Southern Exceptionalism” to “American Exceptionalism", 74 U. Mia. L. Rev. 109 (2019)
Available at: https://repository.law.miami.edu/umlr/vol74/iss1/4