The Judicial Dilemma of Originalism, Part II

Michael Ramsey and Chris Green have made thoughtful comments on The Originalism Blog on my post asserting a tension between original intent and judicial restraint.  (Briefly, I argued that originalism does not necessarily entail restraint and might often counsel the opposite, so that judicial conservatives ultimately have to choose between them.)

Ramsey observes, persuasively, that the tension I asserted is equally a tension for liberals, who must also choose between their calls for a living constitution and judicial restraint; otherwise it is “hard to take their calls for judicial restraint seriously.” I agree. Many if not most calls for judicial restraint are opportunistic.  That said, judicial conservatives who have argued most pointedly for tethering constitutional interpretation to foreseeable principle bear, I would argue, a particular burden not to succumb to that temptation.

Green, for his part, argues that I miscast the tension.  Originalism and restraint are, he says, different in kind: originalism is “a theory about what the Constitution is” while restraint “is a theory about what standards should be used to assess the Constitution, and the distribution of authority to enforce it.”  Restraint can be applied to any number of theories, he notes.  “Originalism does not entail such a restraint principle, to be sure, but neither is it in tension with it.”

For the most part, this is persuasive, and Green is certainly correct, as is Ramsey, that whatever tension I have identified applies to other theories that invoke restraint as well.  (On the other hand, originalism may not actually be a theory of how judges should behave, but it is certainly used that way.)  In any case, my point is less that originalism and restraint inherently conflict than that they sometimes and perhaps often will and that conservatives therefore cannot simultaneously cling to both as principles of how judges should rule.

I take Green’s point insofar as a judge—one suspects this is the Chief Justice’s position in NFIB—might believe a law violates the original meaning of the Constitution yet still find a way in the name of restraint to uphold it.  Such a judge could simultaneously be an originalist and an advocate of restraint.

But for those who treat originalism as a principle of judicial behavior—that is, those who say a judge not only should understand the Constitution in terms of its original meaning but should also always rule that way—originalism and restraint might frequently conflict.  NFIB is the clearest recent case.  The restrained judge would be reluctant judicially to overturn the most important piece of social legislation in a generation, especially in the middle of an election in which it is an issue, even though it is unlikely someone present at Philadelphia in 1787 would recognize it.  Again, the restrained question is whether there is any reasonable interpretation according to which a law could be held constitutional.  This is a different standard from whether a law comports with the original meaning of the Constitution.

On this note, Green detects some confusion in the standard I would apply for judicial review, charting me at one point at Level 2 on the activismometer and at another point on Level 3.  Fair enough.  To clarify, I think Federalist 78 supplies the requisite standard: “irreconcilable variance.”  If a judge can reconcile a law with the Constitution, he or she ought to.  I believe that places me at Level 2.  Incidentally, the activismometer is an immensely clarifying and helpful tool.  So were Ramsey’s and Green’s comments, as posts on The Originalism Blog unfailingly are.