Hayek was an originalist of a certain sort, one who favored an original meaning based on the words of the Constitution and the enactors' intent.
This next conversation is with Joshua Hawley, a former clerk to Chief Justice John G. Roberts, Jr., and an associate professor of law at the University of Missouri, about the arc of power exercised by the Supreme Court since the passage of the 14th Amendment. In one sense, we understand directly what the Antifederalist Brutus once opined about its potentially unlimited powers. The Court, Brutus informed, would be the most dangerous branch because its judges “are independent of the people, of the legislature, and of every power under heaven.” Of course, criticisms of the Court’s activism are now part of our political discourse. Indeed, how could they not be given the Court’s performance in any number of decisions?
But where does a revival of a limited judiciary begin? Less noted amidst talk of judicial methodology and interpretation that fills our discourse on constraining the judiciary is that our written Constitution is rooted in the principle of self-government and is, ultimately, the people’s document to be interpreted by their voices and practices. Its political structural principles of federalism and separation of powers seem to commend a competitive politics that is largely free of substantive judicial intervention. So, how to get there from here? For that, you will need to listen to Hawley discuss several ways a more targeted focus on self-government might challenge the Court’s self-understanding of its expansive powers.