Judicial Engagement, New Originalism, and the Fortieth Anniversary of 'Government by the Judiciary'

Abstract

Forty years ago, Professor Raoul Berger published his originalism manifesto "Government by the Judiciary." Berger argued for deferential judicial review based on the clear text and original intent or original meaning of the Constitution. Now, almost half-a-century later, a new brand of Originalism has emerged among scholars and litigators advocating that judges use robust judicial review when evaluating economic legislation. This heightened form of judicial review may be sensible or not as a matter of public policy, but contrary to the claims of those urging judges to adopt it, judicial engagement as defined by New Originalists cannot be justified by the Constitution's text or original meaning. Such a strong form of judicial review can only be justified by a living Constitution approach to constitutional interpretation.

Keywords: constitutional law, originalism, constitutional interpretation