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Bench Memos

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Supreme Court Officially Conflates Originalism, Activism



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The Volokh Conspiracy has a great excerpt from Justice Stevens’s majority opinion in Danforth v. Minnesota, which held (correctly, in my opinion) that state courts can choose to provide stronger Constitutional protection than the Supreme Court mandates:

[T]he source of a “new rule” is the Constitution itself, not any judicial power to create new rules of law. Accordingly, the underlying right necessarily pre-exists our articulation of the new rule.

To which Volokh’s Orin Kerr responds:

So if I understand Justice Stevens correctly, a case like Miranda v. Arizona was constitutionally required at the time of the Framing, but the Court just didn’t see the true Constitution until the 5-4 decision by Earl Warren in 1966? Um, like, okay.


The whole thing is a funny blurring of originalism and activism — even when the Court is activist, according to this ruling, it’s originalist. Abortion was always a Constitutional right, but nobody realized it until 1973.

On a more serious note, this does imply the Constitution is not “living,” because all the rights it guarantees are “pre-existing,” not evolving, so that’s good.



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