Opening Argument - In Praise of Judicial Modesty

National Journal
March 18, 2006

During the hiatus between Supreme Court confirmation battles, we may as well settle the clash between the conservative and liberal approaches to constitutional interpretation. The battle lines are familiar. Conservatives, led by Justices Antonin Scalia and Clarence Thomas, say that the sole legitimate approach is to follow the literal text and original meaning of constitutional provisions and amendments. Justices' policy preferences should play no role, assert conservative "originalists." But the claim is undercut somewhat by the consistency with which the conservatives' votes on abortion, religion, race, gay rights, and many other big issues happen to fit their policy preferences.

Liberals and many moderates prefer the "living-Constitution" approach, which has been dominant at least since the Warren Court. It involves using ancient but conveniently vague constitutional phrases to enforce "evolving standards of decency," to promote equality, and to vindicate what sometimes-liberal Justice Anthony Kennedy likes to call "the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life." Not surprisingly, constitutional evolution in the hands of liberals supports liberal policies.

Each school of thought is most persuasive in debunking the other. Justice Stephen Breyer skewers originalism in his 2005 book, Active Liberty: "Why would the Framers, who disagreed even about the necessity of including a Bill of Rights in the Constitution, who disagreed about the content of the Bill of Rights, nonetheless have agreed about what school of interpretive thought should prove dominant in interpreting the Bill of Rights in the centuries to come?"