The Constraint Principle: Original Meaning and Constitutional Practice

Abstract

This substantially revised version of "The Constraint Principle" addresses the central normative claim of constitutional originalism: the original meaning of the constitutional text ought to constrain constitutional practice. This claim is shared by almost all of the members of the originalist family of constitutional theories.

Provisionally, the Constraint Principle is the claim that (at a minimum) the content of constitutional doctrine and the decision of constitutional cases should be consistent with the original meaning of the constitutional text. This principle has the implication that constitutional actors, including the Supreme Court, adopt constitutional constructions that effectively amend the Constitution. The aim of this article is to explicate and justify the Constraint Principle.

There are two clusters of arguments for constraint. The first cluster focuses on the idea of the rule of law. Without constraint by the constitutional text, living constitutionalism can lead to judicial tyranny, undermine the rule of law values of certain, predictability, and stability of law, and lead to politicization of the judiciary. The second cluster focuses on legitimacy. As compared to living constitutionalism without constraint, originalism does a better job of realizing the values of democratic legitimacy and transparency.