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Resist the Siren’s Call of ’Originalism’

Feb. 4 (Bloomberg) -- “Originalism” is an influential theory of constitutional interpretation. In the 1960s, Supreme Court Justice Hugo Black, a prominent liberal, marched proudly under the originalist banner. In the modern era, originalism is championed by Justices Antonin Scalia and Clarence Thomas, the court’s most conservative members.

In its least attractive form, practiced by politicians rather than judges, originalism is ideological posturing with a constitutional veneer -- a naive or cynical way of attributing the views of the current political right to the Constitution’s ratifiers. But for all those who seek to restrain judicial power, originalism should be attractive. At the same time, the approach runs into some serious problems.