Originalism, Restraint, and Conservative Constitutionalism

Greg Weiner has written an interesting response to my earlier post where I explained why I don’t believe there is a conservative case for judicial restraint. I don’t want this debate to continue too long, so I will try to be brief, confining myself to two points.

First, the original meaning of the Constitution represents a conservative constitution in the sense I have described: it limited the legislature, it employed traditional principles, it used federalism, and it embedded majority rule in a wider scheme of governing principles. Thus, having the courts follow originalism would have been the way to preserve a constitutional constitution. Having the courts employ judicial restraint at the national level – as it did during the New Deal – largely destroyed that conservative constitution.

Second, Greg largely rests his case on the argument that someone must judge the constitutionality of legislation and the legislature is more to be trusted than the judges. In fact, he suggests that my view is based on the unusual circumstance that the Court is more open to original meaning arguments these days.

Its funny that Greg says this, because I made the opposite point in my earlier post: judicial restraint made sense as a response to the Warren and Burger Courts, but does not make sense generally. For most of our history, the Supreme Court was seen as a protector of conservative interests, whether it was the Lochner Court or John Marshall protecting a economic liberties and a national economy against state regulation.  It was the judicial restraint of the New Deal – justified largely on nonoriginalist terms – that undermined that arrangement. And then once that nonoriginalist approach took hold, the Supreme Court ran with it under the Warren and Burger Courts. Significantly, the judicial activism that Greg worries about has never been pursued by an originalist court.

Despite our disagreement, I have enjoyed this exchange with Greg, and hope one day to read his book on James Madison.