At National Affairs, Steven F. Hayward (Powerline): Two Kinds of Originalism. From the introduction:
Scalia and Thomas represent two different varieties of constitutional originalism that inform a vigorous debate over jurisprudence among conservatives. Thomas thinks the Declaration of Independence and the natural-law teaching it expresses are an authoritative guide for judges, a view that is described as "judicial activism" of the right. Scalia, while agreeing with Thomas about the content of the natural-law tradition, thinks proper judicial restraint comes from confining judging closely to the written text of the Constitution, the known views of the founders, and the operating language of statutes. Anything beyond the text invites the kind of judicial activism that favors liberalism. The argument among conservatives over this point is often more heated than the argument with liberalism's "living Constitution."
Both views connect to a wider argument about the principles of constitutionalism and the philosophy of the American founding. This debate represents the maturing of conservative constitutionalism from the Nixon-era emphasis on "strict construction" or the "original intent" arguments of the Reagan Justice Department. Lots of legal thinkers, along with the Federalist Society, deserve credit for this maturation, but the philosophical core of the disputes can best be seen in part of the epic feud between Harry Jaffa and Walter Berns — political philosophers rather than lawyers.
And from later on:
What divides the right is not exactly the question of natural law as such but the question of its relation to constitutional interpretation. Neither Scalia nor Robert Bork denied or opposed the ideas of natural law or natural rights (although I have heard several second-hand reports of Scalia's dismissing the founders' views on natural rights). But they thought that it was a bad idea for the judiciary to protect unenumerated rights or for judges to employ natural law as a jural tool. In principle, Rehnquist argued, doing so opens the door to imposing one's own moral views in the cloak of judicial review. In practice, he thought it was a game that favors the left.
And from the conclusion:
Judicial modesty is a worthy position and a prudent policy for many cases and controversies that come before the courts. Rehnquist, Scalia, and their many allies are surely correct that many controversial issues such as abortion and gay marriage would be better left to the popular branches of government to resolve. They are likewise correct that the left can invent new rights endlessly, and that turning back these claims in the current intellectual environment is the judicial equivalent of the Dutch boy running out of fingers to put in the leaky dike. My favorite example at the time of this writing is the federal lawsuit arguing that action against climate change is required under the Constitution's guarantees of "life, liberty, and property." One wonders what a federal judge can do by injunction that the EPA isn't already attempting on its own contestable authority.
At the same time, however, it should be acknowledged that understanding the Constitution as simply an act of majoritarian will, and the concession to positivism that view involves, turns us into moral mutes, and therefore ill-equipped to argue against the assertive and unending demands of the left couched in the language of "rights." Jaffa's robust view of the character of the founding, and the essential connection between the Constitution and the reasoning of the Declaration of Independence, is unquestionably subtle and hard to grasp, and this brief survey of the intellectual battlefield barely scratches the surface of the arguments on both sides. (Readers should see Jaffa's complete treatment of the issue in Original Intent and the Framers of the Constitution: A Disputed Question, which includes lengthy responses from three of Jaffa's critics, plus his rebuttals.)
And if Jaffa's perspective about the high moral character of the founding, which took him years to work out, is forbidding or inaccessible, it should be noted that Berns's attempt to maintain the connection between the Declaration and the Constitution by confining the concepts of natural right within a strictly Hobbesian interpretation is not less subtle or challenging to understand and apply.
(Via Powerline and also Mark Pulliam).
This is a magnificent short essay about Berns and Jaffa, and it captures a key dispute among modern originalists. I am much less such of its attempt to tie that divide to Scalia and Thomas. Examples of Thomas diverging from Scalia to enforce unenumerated rights are surely rare (the essay provides none, and I can think of only one — Troxel v. Granville — off the top of my head). Indeed, when they disagreed, Thomas was as likely to reach less rights-oriented positions (e.g., Hamdi v. Rumsfeld; Brown v. Entertainment Merchants; Walker v. Sons of Confederate Veterans). The principal difference between Thomas and Scalia, I would say, is that Thomas feels much less constrained by precedent (a point not relevant to the essay).
Posted at 6:08 AM