A constitution that puts judge-made law first will be an increasingly unoriginalist constitution as precedent is piled on precedent.
Mike Ramsey makes a strong argument that the legal culture influences the decisions of Supreme Court justices. Had Scalia and Kennedy helped to form a majority in Raich striking down the application of the federal statute to home grown medical marijuana, then the acceptance of significant limits on Congress’s powers would have been stronger and might have made it harder for a justice on the fence, like Roberts, not to strike down Obamacare.
I agree with Mike and want to write more generally about the legal culture. One of the greatest challenges for originalists is how to get the justices to follow originalism. After all, they have tremendous independence and in today’s world can get away with decisions that reflect a wide variety of judicial approaches.
The best answer to this challenge is to change the legal culture. If we had a legal culture that was dominated by originalism – if originalism was thought by the great majority of people, including the legal elite, to be the only legitimate method of interpreting the Constitution – then it would be difficult for judges to decide cases in a nonoriginalist manner. The key is changing the legal culture.
Now, this is easier said than done. But it is important to recognize how much progress has been made in this direction in the last generation. A generation ago, when Justice Scalia was appointed to the Court, originalism was considered an extreme approach, one that appealed only to the ideologically driven and intellectually challenged. There are some people who still believe this, such as William Nelson of NYU, but his view is increasingly considered a politically bigoted approach. Instead, with liberals, libertarians, and conservatives following originalism – with increasingly sophisticated theories of originalism being developed by some of the nation’s leading scholars – originalism has become acceptable.
Originalism certainly does not now dominate the legal culture. But it has made great progress. And it is just possible that it may come to dominate it in the next generation or two.