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04/12/2017

Is Instapundit Turning Originalist?
Michael Ramsey

I've thought that super-commentator Glenn Reynolds (Instapundit) has in the past been oddly non-committal  regarding originalism.  A couple of his recent regular columns in USA Today have gotten me wondering if he is leaning more in the originalist direction.

First there's this column from last week: Who the people?  It describes, very positively, the new book by Randy Barnett (a self-proclaimed originalist), Our Republican Constitution.  And his column has this paragraph:

In fact, courts have a duty to enforce the Constitution as written, whether those results further the aims of a political majority or of a minority. When courts do so, even if they strike down laws passed by the majority, they are not engaging in judicial activism. They are simply doing their jobs. Barnett suggests that they should do their jobs more often, and in this he is certainly correct. Will it come to pass? That is less clear.

That follows this passage:

The framers, in general, were suspicious of pure democracy, which they regarded as inherently unstable and prone to corruption, and to the abuse of those who couldn’t muster a majority of votes. (“Two wolves and a sheep voting on what to have for dinner,” as the saying goes.)

Thus, the republican constitution, which places great emphasis on limiting the powers of the majority.  The powers of government were limited, and separated  among various branches, and divided between the federal government and the states, while some things were placed beyond the power of the government entirely. This was intended to ensure that minority groups could go about their business unmolested by the majority.

Next there's this week's column: Judge Richard Posner's unimpeachable honesty (discussing the Hively v. Ivy Tech Community College case).  In it, he calls for the "modest proposal" of electing federal judges, using the explanatory example of Judge Posner's concurrence in Hively

According to Posner, although the drafters of the Civil Rights Act certainly had no intention of protecting gays and lesbians, and certainly wouldn’t have understood the term “sex” to incorporate sexual preference, it is appropriate for courts to “update” the statute in light of modern mores, by interpreting it not as it was written, but as the needs of modern society dictate...

Well.  As a legislator, I’d be happy to lump the two under the term “sex discrimination.” But the legislators who passed the Civil Rights Act, as Posner acknowledges, did no such thing. Is it legitimate for a court to change a statute’s meaning because judges think that times have changed?

Some law professors think that Posner is behaving badly here: Prof. David Bernstein refers to Posner’s opinion as "post-Constitutional,” and Prof. Josh Blackman, after publishing an extensive critique, comments that "Posner is the polar opposite of a ‘honest agent.’ He views himself as a free agent. . . .  What Judge Posner is taking advantage of is life tenure.” Some of my lawprof Facebook friends even suggested that Posner should be impeached.

But in truth, Posner is mostly just being honest. Judges do what he describes all the time, they just usually cloak it behind a smokescreen of legalism that makes it at least somewhat deniable. Indeed, that’s basically what the majority opinion does.

A good descriptive set-up so far, and now his payoff conclusion:

But the job of updating statutes is the job of legislators, not judges, and what legislators have over judges in that regard is that they are elected. Judges can — from within their insular world of life-tenure employment and elite-legal/academic socialization — guess at what contemporary social mores are. Legislators, by virtue of standing regularly for election, don’t have to guess.