The choice isn’t necessarily originalism versus non-originalism

February 19

To continue my occasional side comments on Will Baude’s originalism posts, my view (and what I tell my students) is that in practice the choice in interpreting the Constitution, at least when it comes to Supreme Court decisions, is not really “originalism versus non-originalism” but “how much weight do we give orignalism?”  To my knowledge, there has never been a Supreme Court Justice, including Thomas and Scalia, who has truly been a consistent originalist.  Meanwhile, I don’t know of any Justice who has ever claimed that the original meaning of the Constitution is wholly irrelevant when deciding how to rule on constitutional issues.  So no Justice is, or is ever likely to be, a completely faithful originalist, and I doubt any Justice is going to volunteer that originalist methodologies are completely useless.  So the real debate is over how much weight to give originalism as opposed to precedent, evolving morality, common law constitutionalism, international precedents, settled expectations, fears of (or support for) “judicial activism,” and so forth.

A related issue is what to do when a Justice would prefer to use an originalist methodology, but the original meaning of the constitutional provision in question is sufficiently obscure that the Justice is in the realm of “best guess” as opposed to “pretty darn sure.”  For example, if there is only, say, a 55% chance that originalist methodology will provide the “right” originalist answer, but a 100% chance that deciding the other way will strike a blow to “liberal judicial activism,” will the conservative originalist Justice go with originalism or opposition to liberal judicial activism?  I’m guessing the latter, as a rule.  And I’m not sure that this is a clearly incorrect result from the perspective of a conservative originalist who also thinks judicial restraint is a sound idea.

David Bernstein is the George Mason University Foundation Professor at the George Mason University School of Law in Arlington, VA. He is the author of Rehabilitating Lochner: Defending Individual Rights Against Progressive Reform (2011); You Can't Say That! The Growing Threat to Civil Liberties from Antidiscrimination Laws (2003);
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