Is there really an alternative to originalism?

February 25, 2014

I’ll have the next post for week eight of our originalism class later (class is today), but for now I wanted to mention a post from Mike Ramsey, responding to last week’s posts (mine, Eric’s) on alternatives to originalism.

I think a challenge to originalism might be put more pointedly by someone who unabashedly embraces policy-driven judicial review. . . . My frustration, incidentally, is that the debate between originalism and non-originalism is typically not joined on these grounds. Judges and academic commentators (including Ackerman and Strauss) want to find a version of constitutionalism that is neither originalism nor policy-driven judicial review.

Leaving aside precedent — which I doubt actually decides very many cases at the Supreme Court level — I think for the most part there is no third way. Academic attempts to find one are illusions. You can try to figure out what the original meaning is, or you can try to figure out what the best result is. The question is which one judges should be doing.

Ramsey is more sympathetic to policy-drive judicial review than you might think, though, for reasons he explains in the post.

Will Baude is an assistant professor at the University of Chicago Law School, where he teaches constitutional law and federal courts. His recent articles include Rethinking the Federal Eminent Domain Power, (Yale Law Journal, 2013), and Beyond DOMA: State Choice of Law in Federal Statutes, (Stanford Law Review, 2012).
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