Supreme Court

Originalism vs. Judicial Restraint


At the Originalism Blog, University of San Diego law professor Michael Ramsey has a fascinating post responding in part to my recent column on how the ObamaCare legal challenges are speeding up the slow death of conservative judicial restraint. In Ramsey's view, judicial restraint is "fundamentally at odds" with originalist jurisprudence and therefore "people who argue for originalism and judicial restraint need to decide which they want, because they can't have both." That's long been my own view as well. Here's part of Ramsey's argument:

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).

That's just a portion of Ramsey's provocative anaylsis. Click here to read the whole thing. Click below to watch Professor Ramsey discuss executive power and the Constitution in's "All the President's Wars: How Foreign Policy Became One Man's Prerogative."

NEXT: Reasoner on the Dial: Nick Gillespie Talks Ron Paul, Libertarianism, & Declaration of Independents on Oregon NPR, Noon ET!

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. judicial activiam = decisions with which one doesnt agree.

    1. original meaning or original intent or original context?

  2. Just because previous judges erred in allowing unconstitutional expansions of power to be either condoned or created in their opinions doesn’t mean that it’s judicial activism to now attempt to undo the previously unconstitutional acts of their predecessors.

    While precedent is an important part of our common law system, the Constitution remains the lens through which all government activity should be examined. There is nothing in the Constitution creating exceptions to its terms based on the branches acting in concert to violate its terms. In other words, an unconstitutional precedent doesn’t become constitutional just because a court says it’s okay once. It can be reviewed again and struck down by stating quite simply that the previous court was in error.

    If the government wants to change the terms of the Constitution more permanently, there’s a mechanism for doing so: the amendment process.

      1. Yeah it is simple. Only some jerkoff wanting to charge you $400.00/hour or trying to get tenure at a law school will tell you that understanding the constitution is hard.

        It is really rather simple. When SCOTUS has a case challenging the constitutionality of a law passed by congress they go to Article I, Section 8 and ask, is this in this list?

        I, for one, don’t believe that the commerce clause is or was intended to be a fucking blank check of authority. The whole fucking point of I-8 is to limit.

        The list isn’t that long and it isn’t that hard to interpret…unless you are a constitutional professor.

        Say congress bans issuing passports to people with child support arrears. Is isn’t that hard to conclude “hmm….. that doesn’t have any fucking thing to do with having a navy, doesn’t have anything to do with the post office, doesn’t have anything to do with support of an army, we aren’t talking about a letter of Marque, this isn’t talking about forged money, not talking about constituting a lower tribunal, yep, this law isn’t within the scope of congresses authority.”

        1. Let’s get down to brass tacks. Constitutional law got complicated after the government did everything it could to expand its power over the years, which required stretching the meaning of the various clauses in the Constitution all out of shape. Of course it’s complicated when you try to understand the convoluted, results-oriented reasoning of people pushing a statist agenda.

          The founders were quite clear on the Constitution being a limited, enumerated list of federal powers. The various writings at the time by them and their supporters make it abundantly clear that the federal government would not have general police powers or otherwise be open to expansion by any means other than amending the Constitution.

          1. The problem isn’t that we’re going beyond what’s enumerated, it’s interpreting what is enumerated.

            You want your policy preferences with respect to “interstate commerce” and such to be stamped with a gold star because you’re just right and any judge should know that. But your interpretation of that clause is no more legitimate than anyone else’s.

            1. But your interpretation of that clause is no more legitimate than anyone else’s.

              It doesn’t take a law degree to interpret “Congress shall make no law” to mean “Congress shall make no law”.

              It takes a law degree to interpret “Congress shall make no law” to mean “Under certain circumstances Congress shall make laws”.

              God I fucking hate lawyers.

              1. Again, that’s not the part of the sentence that is subject to interpretation, it’s what follows.

              2. What’s absolutely sickening is how many people cheer when the government throws off another shackle to move one step closer to totally unchecked power. As if all of human history isn’t a series of examples of why that’s a bad idea.

                Our country was founded on the proposition that government is a necessary evil that we should keep to a minimum. That’s not a controversial statement–the Founders said it over and over and over again.

                1. As if all of human history isn’t a series of examples of why that’s a bad idea.

                  Those who cheer the throwing of shackles would say it’s only because the right people weren’t in charge.
                  They fail to see that the problem is centralized power itself, not who has it.

                  1. You fail to see that there isn’t an alternative to centralized power. It’s just a question of whether you get a vote in it.

                    1. Spoken like the true statist you are.

                    2. You fail to see that there isn’t an alternative to centralized power.

                      Not having centralized power is an alternative to centralized power.

                      Only a statist would fail to see that portion of the Venn diagram.

                  2. You can’t control tyranny. What you have to try to do is to prevent it from cropping up at all. It’s like Whack-A-Mole, except all the time.

                    As George Washington didn’t actually say, “Government is not reason, it is not eloquence–it is force. Like fire it is a dangerous servant and a fearful master; never for a moment should it be left to irresponsible action.”

                    1. Yeah and legitimate democratic government with strong checks on its own power is a helpful tool in that endeavor. I fail to see an alternative that’s not based on ridiculous assumptions about humans being rational nonexploitive econobots. It’s not just getting a government job that makes people power-hungry.

                    2. You’re reduced to beating a straw man.
                      Go suck a dick.

                    3. It blows my mind that after all the time spent on this site that Tony just does not get it. Every comment from him is like it’s from a wonkette kid showing up and naively posting for the first time. Tony, why do you still come here?

                    4. A middle school civics teacher has to teach the same shit every year.

                      Trust me I’d love to get to high school or even more advanced.

                2. About the Declaration there is a finality that is exceedingly restful. It is often asserted that the world has made a great deal of progress since 1776, that we have had new thoughts and new experiences which have given us a great advance over the people of that day, and that we may therefore very well discard their conclusions for something more modern. But that reasoning can not be applied to this great charter. If all men are created equal, that is final. If they are endowed with inalienable rights, that is final. If governments derive their just powers from the consent of the governed, that is final. No advance, no progress can be made beyond these propositions. If anyone wishes to deny their truth or their soundness, the only direction in which he can proceed historically is not forward, but backward toward the time when there was no equality, no rights of the individual, no rule of the people. Those who wish to proceed in that direction can not lay claim to progress. They are reactionary. Their ideas are not more modern, but more ancient, than those of the Revolutionary fathers.”

                  1. Except that to the progressive, men don’t have equal rights; those with advanced degrees are the Top Men? and have the moral charter to decide for the rest of us, and that is is the rest of us who have the moral obligation to allow them to do it. We don’t have inalienable rights which inherently belong to us by virtue of existing, only those rights that are decided to be appropriate by said Top Men? in their wisdom. Governments do not derive their power from the governed because the governed are not qualified to give consent.

                    To the progressive, the constitution is meaningless because they feel it their moral obligation to defer to Top Men?, and those Top Men? are restricted by it. Progressives don’t believe in the human condition in which all humans, regardless of time or place, are confronted by the same things: inter-personal relationships, love, hate, a relationship with the state, death, etc. They simply refuse to believe that those who lived “so long ago” can have something pertinent to say about modern life.

                    1. What is libertarianism except total deference to Top Men who achieved that rank by virtue of their ability to acquire money–but not being voted for?

                    2. The class envy is strong in this one.

                    3. I give no deference to any man but myself. I’m perfectly capable of assessing the facts and coming to my own conclusions about what policies might be best for myself and family without the input of Top Men?, much less TEH RITCH.

                      The mind of a Team Player has no choice but to think anyone who disagrees with his position equates agreeing with his enemy. It’s the only thing he can understand, even when he has been abused, repeatedly, by those on his team. Your only hope in your Team mentality is that your asshole has been so thoroughly stretched by the ass-raping you get on a daily basis that the next time will not hurt as much.

                      You’re a shill, Tony, and your vote ensures the continuance of the things you say you hate. You have no principles except that whatever Team RED is ostensibly in support of is wrong, even when one of your own doubles down on said policies.

                      Go fuck a beehive.

                    4. You don’t understand at all. I choose a team because there is no alternative to choosing a team, no matter how special you think you are. One team or the other will win, period. Your ego is irrelevant.

                      I sincerely wish there were two reasonable parties to choose from. But there’s not. There’s one reasonable party and one far right-wing religious authoritarian scary party.

                      I didn’t make the world the way it is, I just react to it. Which is a hell of a lot more useful than playing with myself thinking about my preferred utopia.

                    5. You “choose” a team the same way that a battered woman “chooses” to go back to her abusive husband.

                      You can defend your “choice” all you want, but as long as you and every other team shill votes against some other team, you’re the one perpetuating the warfare and surveillance state.

                      Even if I don’t necessarily have a choice to avoid it (short of leaving or some other such nonsense), I certainly don’t have to support it. You’ve been duped in to thinking that not only must you support your team, but that the world is going to end if you didn’t.

                      I guarantee that if you stay home next year, the outcome will be exactly the same, except you wouldn’t have to feel the shame of knowing that you’re one of the ones that keep it going.

        2. I knew I’d get in trouble for that.

          Let’s just say that the prime reason I’m not, strictly speaking, a libertarian is that I don’t believe libertarian-style simplicity works out. As that’s a whole ‘nother thing, I’ll have to leave it at that.

  3. I thought the duty of the judicial branch was to say “No” when the other branches step outside the confines put forth by the Constitution.
    You know? Like separation of powers, checks and balances, and stuff?

    1. That check has sailed.

      1. In a few more years, those checks will bounce.

      2. The branches of government form a homoousian trinity, at once distinct yet inseparable. Saying that the judicial branch is independent of the others is Arianism, pure and simple. Report for burning.

  4. 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.

    1. Which is why that same document limited the power of the majority. It’s only through usurpation of power not constitutionally granted by our government–including the courts–that got us to where we are now.

  5. I always thought judicial restraint meant judges acting as judges, not as quasi-legislators.

    I’ve never thought judicial restraint meant craven deference to the political branches.

    1. I see nothing wrong at all with the idea of a judge operating with a presumption that any action by government is unconstitutional. Starting from there, we might do a lot better than Extreme Deference, Dudes!

      1. No shit. The only power the judiciary has is as a negative on the legislature. Extreme deference should be rephrased as We Refuse To Do Our Jobs.

    2. But if they don’t defer to the 535 idiots, who will invite them to cocktail parties and give money to their alma maters?

      Perhaps it was a mistake to allow all three branches to occupy the same fetid swamp. Maybe the Executive Branch should have been located in New York, the Judicial Branch in Philadelphia and the Legislature in D.C.

  6. [I]f 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.

    The colloquial understanding of “activist” judges are those that pull rulings out of their judicial asses.

    To be sure, it’s activism within the bounds set by the original meaning.

    Ok, so activism loses all meaning then. “Activism” is understood as inventing laws or rights that did not exist before like, for instance, the “collective right” canard used to disarm citizens. It’s “interpreting” the Constitution in a way that otherwise cannot be construed by normal and reasonable people who speak and read English.

    1. Couldn’t activism also mean passively not striking down legislation that is in obvious violation of the Constitution?
      restraint = activism

      1. That’s right. What we’ve learned over the years is that the watchers, those watching the watchers, and those watching those who watch the watchers cannot be trusted. I guess we need another set of watchers who aren’t part of the federal government.

    2. Activism means judges handing down rulings based on something other than the literal text of the Constitution according to the common understanding of what the words meant at the time it was ratified.

      Whether that is rubber stamping or blocking what a legislative body is doing makes no difference.

  7. I thought the point of having a constitution was so we wouldn’t be subject to the whims and tyranny of the majority.

    1. Having a Constitution that would protect from the whims & tyranny of the majority went away when Lincoln destroyed the Constitution in order to Save It and set in motion the increasing power of Washington. The body was embalmed when FDR created mega-Washington and it was buried when the Supremes started using foreign law to help create shadows & penumbra.

  8. Sophistry – such a tempting goddess.



  10. Originalism wasn’t just made up out of thin air–it is based on Anglo-American methods of statutory interpretation that are centuries old. The Constitution is really just a “meta-statute”, and it is interpreted no differently.

    The clear, unambiguous text of a statute always controls, and if the provision in question is ambiguous, then judges look to other sources for interpretation, including analyzing the legislative history and reading the provision in context with the statute as a whole or other related statutes. It has nothing to do with majoritarianism or politics as an interpretation tool.

    The problem is that most parts of the Constitution contain ambiguities that are necessary for a founding document intended to last for generations. I consider myself an “originalist,” but the reality is probably that such a document will always be interpreted according to the societal norms of the time.

    More important is that the basic purposes of the Constitution be maintained. The wisdom of the founders was not in foreseeing every possible national situation that would arise over centuries, but in their basic understanding of the role and dangers of government. Human nature does not change.

  11. The false dichotomy between “judicial activism” and “judicial restraint” started as a civil war among liberal judges. Liberals like the late Earl Warren were into activism – upholding the liberal idea of civil liberties (other than economic liberties). Liberals like Felix Frankfurter were into deferring to legislative bodies (especially Congress) – upholding the liberal principle of democracy and majority rule. Warren and Frankfurter both allowed exceptions, but they set the terms of debate. Hugo Black was a lone voice for the *principle* of originalism (although in practice he didn’t always follow the original intent – but at least he tried, unlike the others).

    Many conservatives have a more *nuanced* view of judicial power – the courts should defer to the *Constitution,* not to a temporary majority, if the two are in conflict, and the Constitution means what those who ratified it believed it meant. Many liberal decisions violated *both* the original intent *and* judicial restraint, which tempted some conservatives to fall into the majoritarian trap, as if the only problem with activist decisions is that they didn’t let the majority of voters get their way.

  12. People forget that (and I didn’t know this myself until recently) that the 9th amendment pretty much determines how the court will interpret the constitution. It basically says that it shall not construe the constitution in such a way to deny or interfere with the rights RETAINED BY THE PEOPLE. This basically says that the constitution must be interpreted using the delegated powers thinking which was how the people of the age thought of it.

Please to post comments

Comments are closed.