Greg Weiner: The Judicial Dilemma of OriginalismMichael Ramsey

At Liberty Law Blog, Greg Weiner (Assumption College, Political Science): The Judicial Dilemma of Originalism.  From the introduction:

For the bulk of the last generation, a conjunction of conservative legislatures and liberal courts enabled judicial conservatives to avoid a theoretical tension it is now time to confront: that between original intent and judicial restraint.

The tension was alleviated by the fact that, given the blend of conservatism in the electoral branches and liberalism on the bench, advocates of original intent and judicial restraint reached the same conclusions in 99 cases of 100: If majorities made decisions compatible with constitutional originalism and courts were inclined to overturn them—see Roe v. Wade as the paradigmatic example—the natural default for conservatives was judicial restraint. Conservatives, led intellectually by Judge Robert Bork, preached a doctrine of deference to majorities.

But now that majorities are reaching conclusions that test the boundaries of constitutional orthodoxy [ed.: I think he means "the boundaries of the Constitution's original meaning"] and judges who preach that orthodoxy populate the bench—the paradigm, in short, having shifted from Roe to NFIB v. Sebelius—conservatives are being forced to ask whether what they meant all those years was actually that the courts should defer to majorities as a matter of principle or rather that courts should in fact act as a counter-majoritarian makeweight after all but were, in the liberal epoch, simply reaching the wrong conclusions. Both positions are tenable, but as the fissures between them widen, judicial conservatives had best work out which they espouse...

I agree with every single point in this outstanding post (which is not to say that I pick restraint over originalism, only that I agree that a choice must be made).  I would add that judicial liberals face exactly the same dilemma in reverse.  That is, they may want an evolving Constitution, but depending on who is on the bench and who is in the electoral majority, it may not evolve in ways they want it to -- and when that happens, it is hard to take their calls for judicial restraint seriously.