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08/31/2017

William Baude: Originalism as a Constraint on Judges
Michael Ramsey

William Baude (University of Chicago Law School) has posted Originalism as a Constraint on Judges (University of Chicago Law Review, Vol. 84, 2018) on SSRN.  Here is the abstract:

One of Justice Antonin Scalia’s greatest legacies was his promotion of constitutional originalism. One important feature of Scalia’s particular arguments for originalism was constraint—the idea that originalism was centrally a way, the best way, to constrain judicial decision-making, whereas nonoriginalist theories would essentially license judges to make up constitutional law as they went along.

In this short essay, I honor Justice Scalia with two observations about originalism and constraint. The first is that originalist scholars today are much more equivocal about the importance and nature of constraining judges. This is a point that may be obvious to those steeped in the latest originalist theory, but apparently cannot be stated often enough or clearly enough to those who are not.

The second observation, which relates to the first, is that the concept of constraint is ambiguous in several respects and that originalism may be better at some kinds of constraint than others. In particular, I emphasize the difference between external constraints, which help others to judge the interpreter, and internal constraints, which focus on allowing the interpreter to constrain him- or herself. As reflected and refined in modern scholarship, originalism may not be terribly good at the former, but it may be much better at the latter. In other words, originalism can still have constraining power, but mostly for those who seek to be bound.

Further comments on the article from Professor Baude are here.