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 Reason.tv's "All the President's Wars: How Foreign Policy Became One Man's Prerogative."