At Liberty Law Blog, Peter Lawler (Berry College — Goverment [and NRO's "Postmodern Conservative"], Philosophical Absolutes and the Constitution (commenting at length on Ilya Somin's review of Damon Root's Overruled). From the introduction:
In his lucid and compressed account of the argument of Damon Root’s new book Overruled, the excellent libertarian judicial scholar Ilya Somin has done us the service of presenting in a pithy and powerful way the libertarian vision of the proper place of the Supreme Court in our constitutional system. The key conflict these days is between libertarians and (social) conservatives, and the key interpretive choice is between “originalism” and deference to legislatures.
According to Somin, the libertarian view is becoming increasingly mainstreamed while the conservative view is on the defensive—soon to be defeated, in fact, although “not without a fight.”
The libertarian innovation hidden in the appeal to originalism is the proposition that our Framers intended that their original or classically liberal principles would, by means of the Supreme Court’s jurisprudence, routinely trump legislative deliberation. To me it seems quite possible to be an originalist in the sense of being all for natural rights, and still doubt that judicial review was ever meant to be much more than an “auxiliary precaution” that would be rarely used. Liberty’s main defenses against “majority faction” and such, if the Federalist is to be trusted, are 1) the coalition-building process in the legislature of a large and diverse republic, and 2) the separation of powers’ checks and balances.
UPDATE: Ilya Somin responds: Libertarianism, conservatism, and judicial review. This in particular is an important paragraph:
… [M]ost modern originalists – including conservatives such as Steve Calabresi and the late Robert Bork – do not base originalism on “original intent” – the specific intentions and expectations of the framers. The dominant version of originalism is now “original public meaning”: the idea that the words of the Constitution should be interpreted in accordance with the public understanding of the words at the time of enactment. Often, the original meaning of a constitutional provision is a broad general principle that courts and others must apply to changing social conditions and increasing knowledge of relevant facts. For example, most originalists agree that the Fourth Amendment restricts wiretapping and that the First Amendment protects speech on the internet, even though the Founding Fathers probably could not have imagined either situation. The combination of fixed principles, changing social conditions, and new scientific knowledge yields decisions protecting old rights in new ways that are nonetheless consistent with originalism.
I basically agree, but with this caveat: It's one thing to say that the rules adopted at the founding can be applied to new technologies, such as the internet, that the founders could never have imagined. I think few if any originalists doubt this proposition. It's another thing to say that because of "changing social conditions, and new scientific knowledge" the rules adopted at the founding can be applied to reach the exact opposite of the results the founders intended or expected. I agree that sometimes this might be possible (see here for my tentative originalist argument for constitutional protection of same-sex marriage). And I further agree that the ultimate inquiry is the original meaning of the words adopted, not the intent or expectations of those who adopted them. But the intent and expectations of those adopted the language is extremely strong evidence of what the language originally meant. They might have been mistaken about their language, but they are much less likely to have been mistaken about it than we are. Usually, if I hear someone arguing that the language means something other than what a consensus of the framers thought it meant, I think they are substituting their own values for the framers'. That might be a good thing (because the framers' values were not always right) but it isn't originalism.
Posted at 6:16 AM