Originalism, Conservatism, and Judicial Restraint
Strauss, David A., Harvard Journal of Law & Public Policy
"Judicial restraint" is not a well-defined term. Sometimes it is just an all-purpose term of praise for judges who have reached decisions that the speaker likes, in the same way that "judicial activism" is often an epithet used for decisions that the speaker dislikes. (1) But it might be possible to give at least some minimum content to "judicial restraint." Let's say that, at a minimum, "restrained" judges are careful about not letting their views of policy or morality displace the law.
If you believe in judicial restraint in that sense, then you should not be an originalist. You should firmly reject originalism, at least in the form in which most self-identified originalists today define it. (2) Instead, you should adopt a view that emphasizes the role of precedent in constitutional law. I'll go further. Whatever judicial restraint means, if you are a conservative today, you should be deeply skeptical of originalism. Instead, you should be receptive to a precedent-based view of constitutional law. (3)
There is a paradox here. (4) A couple of generations ago, many people would have thought it obvious, true almost by definition, that both judicial restraint and conservatism mean adherence to precedent. Precedent keeps judges from going off in a direction of their own choosing; (5) cut judges loose from precedent, and you invite unrestrained adjudication. As for conservatism, precedent is a matter of adhering to what has gone before, of conserving what has been done in the past. So, according to a common definition of conservatism, (6) adherence to precedent should be a core conservative view. Today, there are conservatives who would say that adhering to tradition is not the core of conservatism. (7) Even for conservatives who take that view, though, originalism, at least today, is a bad match.
Let me begin by addressing originalism and explaining why originalism is not a viable alternative to a precedent-based approach. This is true at least for an originalist approach to our Constitution, because nearly all of the controversial provisions of our Constitution are very old. If we were dealing with newer constitutions, or newly enacted constitutional provisions, originalism would be more defensible. But nearly all the provisions of our Constitution that generate controversy were adopted either in the aftermath of the Civil War or earlier, as part of the original Constitution or in amendments adopted in its wake, like the Bill of Rights. (8)
For a constitution like ours, there are at least two principal problems with originalism. These are familiar criticisms of originalism, but I do not think they have been answered satisfactorily. The first is the problem of ascertaining the "original understandings," the original public meanings, or whatever historical fact or condition an originalist is supposed to ascertain. (9) However originalism is conceived, this is essentially a project in intellectual history: it calls for trying to reconstruct what people who lived in an earlier time thought about their world. (10)
Intellectual history is a valuable and important discipline, but it is also a discipline that, by its nature, leaves a lot of questions unsettled. Intellectual historians disagree among themselves about the best way to understand the ideas of earlier generations. (11) But perhaps more important for purposes of constitutional law, intellectual historians have the incalculable advantage of being able to choose their own battles. They can decide what period they want to try to understand, and which issues within that period. A judge cannot do that. (12)
Suppose, for example, that a historian wanted to analyze how people in an earlier era talked about a constitutional issue. She would examine public statements, public records, and the like--the kinds of materials that originalists say should be the sources of constitutional law. (13) But suppose that the historian, after examining those materials carefully and sympathetically, decides that she just cannot make head or tail of the intellectual currents of that period. …