Originalism, Conservatism, and Judicial Restraint

By Strauss, David A. | Harvard Journal of Law & Public Policy, Winter 2011 | Go to article overview

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. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Note: primary sources have slightly different requirements for citation. Please see these guidelines for more information.

Cited article

Originalism, Conservatism, and Judicial Restraint
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen
Items saved from this article
  • Highlights & Notes
  • Citations
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Search by... Author
    Show... All Results Primary Sources Peer-reviewed

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.