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02/08/2014

More on Sunstein, Precedent and Originalism
Michael Ramsey

Will Baude has this follow-up on posts by Eric Posner and me:  Originalism, False Dichotomies, and the Question of Who Decides.  With this conclusion:

Originalism suggests that somebody other than the interpreter gets to make important policy decisions, even if that other somebody might sometimes choose to delegate back to the interpreter in the end. Hence, there is no guarantee the interpreter will like the answers, though it is also a mistake to assume that the interpreter will hate them. They’re probably a mix. That can be scary if you have already constructed a competing theory of law that gives you the answers you want.

Or scary even if you don't have a theory, but just want your answers.

Eric Posner has further thoughts here, in which he points to the fact that the executive branch (measured by number of employees) has grown compared to the legislative branch.  I don't see at all what this has to do with originalism.  Executive branch offices are authorized by Congress, as the Constitution contemplates.  It may be, as Professor Posner says, that the framers of the original Constitution could not have imagined this growth of the executive branch.  But neither did they limit it (at least, as to number of employees).  What this proves is that originalism is more flexible in accommodating change than people often think.