More on Weiner on Restraint and OriginalismChris Green

Mike notes below Greg Weiner's argument that originalism is in tension with judicial restraint. But as I explain here, I don't think that's the right picture. Originalism is a theory about what the Constitution is--to wit, that it is unchanging and fixed, as to important attributes, at the time constitutional provisions are adopted. But restraint is a theory about what standards should be used to assess the Constitution, and the distribution of authority to enforce it. Those standards and that distribution of authority can be applied to either an originalist or a non-originalist constitution.

We might think of the originalist controversy as a debate about what to put under a microscope--something dead, or something living. But issues regarding restraint concern what kind of microscope to use to look at that something: what standards of fuzziness we will demand, for instance, to generate adequate experimental data. We might use the same microscope with different objects, or look at the same object with different microscopes.

Weiner notes, "The question for the restrained judge is ... not whether he or she believes a law enacted by majorities is constitutional. It is whether there is any reasonable interpretation according to which it might be." (The any-reasonable-interpretation understanding of judicial restraint is Level 2 on the activismometer, though a moment later he refers to a willingness to act in "clear-cut cases," suggesting Level 3.) 

Originalism does not entail such a restraint principle, to be sure, but neither is it in tension with it. Originalism (and non-originalism) are ways of filling in the meaning of "constitutional"--e.g., either as "consistent with the original meaning" or as "consistent with the evolving principles of the common-law constitution."

So, a restrained originalist would say, "The question for the restrained judge [like me] is ... not whether he or she believes a law enacted by majorities is [consistent with the original meaning] . It is whether there is any reasonable interpretation according to which it might be." The restrained living constitutionalist would say, "The question for the restrained judge [like me] is ... not whether he or she believes a law enacted by majorities is [consistent with the evolving principles of the common-law constitution]. It is whether there is any reasonable interpretation according to which it might be."

Likewise, the non-restrained originalist would say, "I don't care what a reasonable person could think about the original meaning; I want to enforce the actual original meaning." The non-restrained non-originalist would say, "I don't care what a reasonable person could think about the evolving principles of the common-law constitution; I want to enforce the best interpretation of those principles."

Weiner is definitely right that originalism and restraint are "not coterminous," but neither are they necessarily in tension, I think, such that conservatives must "take sides" with respect to them. There are two controversies with two sides (at least) each.