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Originalism as a Constraint on Judges

17 Pages Posted: 31 Aug 2017 Last revised: 10 Sep 2017

William Baude

University of Chicago - Law School

Date Written: September 8, 2017

Abstract

One of Justice Antonin Scalia’s greatest legacies was his promotion of constitutional originalism. One important feature of Scalia’s particular arguments for originalism was constraint — the idea that originalism was centrally a way, the best way, to constrain judicial decision-making, whereas nonoriginalist theories would essentially license judges to make up constitutional law as they went along.

In this short essay, I honor Justice Scalia with two observations about originalism and constraint. The first is that originalist scholars today are much more equivocal about the importance and nature of constraining judges. This is a point that may be obvious to those steeped in the latest originalist theory, but apparently cannot be stated often enough or clearly enough to those who are not.

The second observation, which relates to the first, is that the concept of constraint is ambiguous in several respects and that originalism may be better at some kinds of constraint than others. In particular, I emphasize the difference between external constraints, which help others to judge the interpreter, and internal constraints, which focus on allowing the interpreter to constrain him- or herself. As reflected and refined in modern scholarship, originalism may not be terribly good at the former, but it may be much better at the latter. In other words, originalism can still have constraining power, but mostly for those who seek to be bound.

Keywords: constraint, restraint, originalism, original meaning, judges, Scalia, Justice, constitution, constitutional law, wayward, willful, puzzled

Suggested Citation

Baude, William, Originalism as a Constraint on Judges (September 8, 2017). University of Chicago Law Review, Vol. 84, 2018. Available at SSRN: https://ssrn.com/abstract=3028846

William Baude (Contact Author)

University of Chicago - Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States

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