In The New Republic, Simon Lazarus: Conservatives Don’t Have a Monopoly on Originalism. From the introduction:
Last month, the conservative writer Ramesh Ponnuru published an op-ed in The Washington Post arguing that Democrats “have lost the debate about the role of courts in our democracy.” He detailed how conservatives over two generations “developed a comprehensive strategy, including politically powerful rhetoric,” to shift the federal courts toward their way of thinking. “Judges shouldn’t rewrite the law in the guise of interpreting it, they said; judges should be umpires, not players taking a turn at bat,” wrote Ponnuru, the editor of National Review. “Conservatives warned against letting judges have wide leeway to fill in the meaning of apparently vague language, instead urging them to be constrained by what the informed public understood the words of the law meant when it was ratified.” By which he means, of course, originalism.
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Ponnuru might be right about conservatives’ rhetorical success, but the tacit premise of his essay—that conservatives alone embrace originalism—is dead wrong. That could have been a fair point in the 1980s, when President Reagan’s second-term Attorney General Edwin Meese, Judge Robert Bork, Justice Antonin Scalia, and other luminaries of the new legal right first hoisted the banner of originalism—and liberal Justice William Brennan responded with a dubious counterpoint slogan, “living constitutionalism.” But not today. While some in the media and even in the Democratic Party conflate originalism with legal conservatism, a compelling contrary vision has emerged on the left: that rigorous fidelity to the text and history of the Constitution—a holistic interpretation that includes its amendments as well as legislative debates at the time, as opposed to conservatives’ penchant for cherry-picking isolated provisions out of context—often yields liberal results.
As Harvard Law’s Cass Sunstein wrote in this magazine nearly a quarter-century ago, while “Justice Scalia is the most famous originalist; in the law schools the most influential originalist may be Akhil Reed Amar, an ingenious and prolific scholar.” Unlike conservative originalists, he observed, Amar contends that “a fair reading of text and history supports liberal, sometimes even radical, conclusions.” Amar was soon joined by his Yale Law colleague Jack Balkin, who likewise stressed, “We follow the original meaning of words in order to preserve the Constitution’s legal meaning over time, as required by the rule of law.” But along with Amar, Balkin recognized that the Constitution’s terse terminology, many of its specific provisions, and key explanations by the Framers prescribed broad authority for future generations to adapt to changing circumstances and evolving political and moral precepts.
Posted at 6:03 AM