That’s the title of an excellent essay by the young legal scholar Joel Alicea in the new issue of National Affairs, the outstanding quarterly journal edited by my Ethics and Public Policy Center colleague (and 2013 Bradley Prize winner) Yuval Levin.
Alicea explores the tensions that can arise between originalism and judicial restraint. As he explains, originalism and judicial restraint “have reinforced one another,” and have been “rhetorically and intellectually intertwined,” in “opposing the fabrication of constitutional rights by judges.” But what happens when originalism supports to some degree the recognition of a constitutional right (or of a limit on governmental power)? What standard of proof—what burden of certainty—must be met before a judge invalidates a democratic enactment that conflicts with that asserted right (or limit)?
Alicea rejects the opposite extremes of “Thayerian judicial restraint” (under which a judge may invalidate a statute only when its unconstitutionality is “so clear that it is not open to rational question”) and of Randy Barnett’s libertarian “presumption of liberty” (which would establish a rebuttable presumption that a law is unconstitutional). But I think it’s fair to say that the (inevitably imprecise) standard that he adopts—the judiciary should “strike down laws that, in the courts’ best judgment, violate the original meaning of the Constitution”—is much closer to Thayer than to Barnett.
My own position is probably even closer to Thayer’s (while still falling short of it), as I would expect a judge to have reached a firm conviction that a law violates the original meaning of the Constitution before he invalidates it.