At reason.com, Damon Root: Strict Scrutiny: Obamacare and the Long Slow Death of Conservative Judicial Restraint.
UPDATE – FURTHER THOUGHTS: Damon Root’s insightful post inspires some originalism-related thoughts. Root highlights political conservatives’ mixed feelings about judicial restraint: once a centerpiece of conservative views of the judiciary, the idea of deference to the political branches has lost favor in part, Root argues, as more conservative judges were appointed, giving “right-leaning federal judges … the opportunity to overturn liberal legislation.”
Root doesn’t discuss originalism directly, but there’s a similar tension in originalist theory. Modern originalism has roots in reaction to the Warren Court. It provided a way for Warren Court opponents to appeal not just to policy disagreements but to the higher principle of faithfulness to the Constitution. As such, it carried a substantial appeal to democratic values: the sins of the Warren Court, to a significant extent, were said to be that it imposed rules the Constitution didn’t justify, and so produced rule by judges over majority rule. Thus the quote from the originalist Robert Bork which Root invokes: “in wide areas of life majorities are entitled to rule, if they wish, simply because they are majorities.” Originalism in this sense is deployed as a tool of judicial restraint.
Except that originalism doesn’t really work that way. The Constitution’s original meaning is a set of rules, and there’s no reason to think modern majorities necessarily want to live within them. (One can argue, as Lino Graglia does, that originalism permits most things modern majorities want to do, but that seems to require either a very narrow view of the Constitution’s commands or a lot of wishful thinking about modern majorities). And if modern majorities break the rules, why aren’t originalist judges entitled and indeed obligated to overturn majorities? Yet that turns originalism into a recipe for active, not deferential, judges. To be sure, it’s activism within the bounds set by the original meaning. But originalist judges substitute their views for the views of the majority – only it’s their views of the original meaning, rather then their views of the best modern policy or morality. This may be justifiable on various grounds, but it can’t be justified on grounds of majoritarianism (or restraint).
As originalism has become less a critique of the Warren Court and more a program for adjudication across the full range of constitutional issues, its non-restrained character has become more apparent. And yet originalism continues to look to democratic values for justification. Consider Justice Scalia’s concurrence in McDonald v. City of Chicago, in which he argues that originalism best protects democratic values, while defending an opinion that, on originalist grounds, lays the groundwork for judges to invalidate gun control measures adopted – by majorities – in state and local jurisdictions throughout the country. Assuming McDonald is correct about the rule contained in the original meaning of the Second and Fourteenth Amendments, (a) something must justify imposing that rule on modern majorities, and (b) that “something” can’t be democratic values.
This is not meant to criticize either judicial restraint or originalism. My point is that judicial restraint is a competitor, not an ally, of originalism in constitutional theory (just as Root sees that judicial restraint is a competitor rather than an ally of conservative political theory). Sometimes – perhaps often – the two will align in particular cases, but they are fundamentally at odds. If you doubt it, consider how many times Scalia has voted to invalidate the actions of majorities on originalist grounds. Scalia has said (among other places, in his classic A Matter of Interpretation) that the core divide in constitutional theory is between originalism and living constitutionalism. There is at least as significant a divide between those who would find a substantial role for judges in determining social policy (whether through original meaning or otherwise) and those who wouldn't.
In sum, two conclusions. First, people who argue for originalism and judicial restraint need to decide which they want, because they can’t have both. Second, originalism needs to attack judicial restraint head-on. Ultimately it’s an adversary, not a friend – and it’s an adversary that highlights the most basic question originalism must answer: why should rules adopted long ago bind today? By taking judicial restraint, as well as living constitutionalism, as a key theoretical counterpoint, originalist theory would be more motivated to confront its central challenge (and less tempted to invoke the ultimately unsatisfying justification of democratic values).
Posted at 12:30 PM