Resist the Siren’s Call of ’Originalism’

Feb. 4 (Bloomberg) -- “Originalism” is an influentialtheory of constitutional interpretation. In the 1960s, SupremeCourt Justice Hugo Black, a prominent liberal, marched proudlyunder the originalist banner. In the modern era, originalism ischampioned by Justices Antonin Scalia and Clarence Thomas, thecourt’s most conservative members.

In its least attractive form, practiced by politiciansrather than judges, originalism is ideological posturing with aconstitutional veneer -- a naive or cynical way of attributingthe views of the current political right to the Constitution’sratifiers. But for all those who seek to restrain judicialpower, originalism should be attractive. At the same time, theapproach runs into some serious problems.