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12/02/2017

John McGinnis on Robert Bork and Judicial Restraint
Michael Ramsey

At Liberty Law Blog, following up on this post by Mark Pulliam, John McGinnis: Bork Was a Great Scholar, But Poor Guide to Modern Originalism.  Key point:

The problem is that Bork’s theory combined judicial restraint—something he derived from his view of democracy – and original meaning. These are simply incompatible as first principles. If one begins, as I do, with the first principle of originalism, the question of the appropriate degree of judicial deference, if any, to legislation is itself a question of constitutional meaning. I have offered reasons rooted in original meaning that the Constitution imposes on judges a modest duty of deference in that the meaning of the Constitution must be relatively clear, after using traditional judicial methods of clarification, before invalidating legislation.  This judicial duty is simply a product of original meaning, not some atextual policy of judicial restraint.

Nor does originalism rule out unenumerated rights, as Bork sometimes implied, if that is indeed the best reading of the Constitution’s text. In my view, the Ninth Amendment is not a fount of rights against the states,  but that view does not derive from judicial restraint but from my reading of the Ninth Amendment. On the other hand, I believe that Privileges or Immunities Clause offers a modest shield against protectionist state legislation, but that view again is based on my reading of the original meaning of the term.