Roberts vs. Ginsburg on Constitutional Originalism


Chief Justice John Roberts isn't likely to win any popularity contests among conservatives or libertarians today. But fans of the judicial philosophy known as originalism (which holds that the text of the Constitution should be interpreted according to its original public meaning) might still get a smile out of Footnote 4 from Roberts' opinion. In it, he rejects Justice Ruth Bader Ginsburg's attempt at an originalist reading of the Commerce Clause, which Ginsburg believes allows Congress to regulate both activity and inactivity. Roberts writes:

JUSTICE GINSBURG suggests that "at the time the Constitution was framed, to 'regulate' meant, among other things, to require action." But to reach this conclusion, the case cited by JUSTICE GINSBURG relied on a dictionary in which "[t]o order; to command" was the fifth-alternative definition of "to direct," which was itself the second-alternative definition of "to regulate." It is unlikely that the Framers had such an obscure meaning in mind when they used the word "regulate."  Far more commonly, "[t]o regulate" meant "[t]o adjust by rule or method," which presupposes something to adjust. [Citations omitted.]