More on Radical and Moderate Originalism

My last post distinguished between radical and moderate versions of originalism. This post discusses a few more aspects of the distinction and assesses my own views as radical or moderate.

First, one sees the original and moderate versions assumed in debates about originalism. Some people claim that originalism would require radical changes in existing doctrine, and use that to criticize originalism. Other people defend originalism by denying it would be radical, in effect saying it would only be moderate.

By contrast, some radical originalists view their radical interpretation as morally beneficial because it conforms with their political philosophies. Others then attempt to criticize those radicals by claiming their radical interpretation of the Constitution is mistaken.

My own views about the Constitution’s original meaning is something of a mixture of the radical and moderate views. In general, I have an intellectual proclivity in different areas to attempt to synthesize different positions to reach a middle of the road view. (For example, I have something of an intermediate view between consequentialism and deontology as to moral philosophy.) But that is not what occurs as to my originalism. I just look at different constitutional issues and come to different conclusions. Thus, I find the radical interpretation of one clause to be persuasive and the moderate interpretation of another clause to be compelling. I think of it as honest, while others might see it as incoherent.

In general, I tend to have a strong view of federalism, believing that there is a very limited commerce power, no spending power, and a relatively limited necessary and proper power. I also have a pretty strict understanding of the separation of powers. My views on economic rights have changed over the years and tend to be middle of the road for originalists.

When I was confident that the Fourteenth Amendment incorporated the Bill of Rights, I believed the Fifth Amendment Taking Clause did not restrict regulation (only physical invasions), but the Fourteenth Amendment Taking Clause that was incorporated might have extended to regulations. These days, I have a more complicated view of incorporation, which may or may not implicate that result.

As to the Privileges or Immunities Clause, I tend to believe it protects a wide array of substantive rights, but those rights are limited by the police power. And those rights might or might not be dynamic—that is, those constitutional rights might change as the rights recognized in the different states change over time.

Further, I tend to believe that the freedom of speech and press provisions are wide but shallow—that is, the rights extend to a whole variety of areas, such as commercial speech, but do not provide as strong protection to political speech as modern doctrine provides.

Finally, the rigor of my interpretation of the original meaning is moderated by a doctrine of precedent. While I favor a more limited version of precedent than the one the Supreme Court purports to apply, it is still stronger than the no precedent version of many radicals.

Overall, then, I end up with something of an intermediate view of originalism, combining elements of both the radical and moderate versions.