Bench Memos

Law & the Courts

On Libertarian Originalism

The Law and Liberty website has a symposium this month on Ilya Somin’s essay, “How Constitutional Originalism Promotes Liberty.” My response, titled “The Use and Abuse of Originalism,” has just been published. I take issue with Somin’s normative justification for originalism, his disparagement of the realm of democratic self-government, and his straw-man attack on judicial deference. My closing observation:

Some libertarians sometimes invite the suspicion that their commitment to originalism is opportunistic—that, for them, originalism is something to be invoked and to be twisted, this way and that, to constitutionalize their policy preferences. A normative justification for originalism that does not build on the essential rightness of originalism as a method of interpretation, but that instead looks exclusively to the consequences that originalism yields, does not help to dispel that suspicion. And a libertarian defense of an activist judicial role, along with a shrunken vision of the realm of the democratic process, tends to feed that suspicion.

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