Thomas Colby has a piece on SSRN titled The Sacrifice of the New Originalism that discusses the interplay between old originalism, which was premised on judicial restraint, and new originalism, which provides judges with significantly more discretion. Here is the abstract:
This Article argues that Originalism has achieved its intellectual respectability only at the necessary expense of its ballyhooed promise of constraint. The Article recounts the theoretical advances of the New Originalism and argues that the New Originalism is substantially more defensible than was the Old one and is much better positioned to answer the scholarly critiques that demolished its predecessor. The Article further explains that these benefits have, however, come at the cost of judicial constraint. By its very nature—and to a far greater degree than its proponents have tended to recognize—the New Originalism is a theory that affords massive discretion to judges in resolving contentious constitutional issues. The Article suggests that there is something unsustainable in the current state of affairs. Originalism gains it salience in the public discourse by its continued reliance on a promise to constrain judges; it is that promise that brings it lay respect. Yet, it gains academic respect only by foregoing that promise. Originalism now garners esteem from much of both the public and the academy, but only because the public and the academy are speaking of very different things when they refer to originalism. Originalism somehow continues to thrive as both a political movement and as a scholarly theory, even though the features that make it attractive as a political movement render it impotent as a scholarly theory and vice versa.
From the introduction:
Originalism1 was born of a desire to constrain judges. Judicial constraint wasits heart and soul—its raison d’eˆtre. But however intriguing it might have beento imagine a neutral theory that could purge the personal values of judges fromthe process of constitutional adjudication, originalism initially suffered from somany practical and theoretical defects that it failed even to be taken seriously,let alone to prevail, in the legal academy.
So it has evolved. It has responded to its critics, refined itself, and matured. Ithas indeed made such great theoretical strides as to win numerous adherents andsignificant respect in the scholarly community.
The advocates of this new and improved originalism have self-consciouslyadopted a new label—“the New Originalism”2—to distinguish their theory fromits failed forerunner—what this Article identifies as “the Old Originalism.” Buttheir theory is more distinct from its predecessor than many of them would liketo admit. Intentionally or not, the New Originalism has left behind more thanjust the theoretical flaws of its predecessor. It has also effectively sacrificed theOld Originalism’s promise of judicial constraint. The very changes that makethe New Originalism theoretically defensible also strip it of any pretense of apower to constrain judges to a meaningful degree.
Randy Barnett, one of the most prominent New Originalists, may not beexcessively overstating the point when he claims that originalism “is now theprevailing approach to constitutional interpretation.”3 But that is because, in its New incarnation, originalism is no longer objectionable to liberals, libertarians,and other believers in a robust judiciary enforcing an evolving and growingbody of constitutional rights and principles4—the very beliefs that the Old Originalism was created to oppose.
That is to say, in its New form, originalism has sacrificed the feature thatonce set it apart and gave it an identity and a mass appeal—the very thing thatmade it what it is. Originalism has sold its soul to gain respect and adherents.5And it can recover its soul only by abandoning the theoretical sophisticationthat it needs in order to be taken seriously.
Although there is surely something of a “Monkey’s Paw” aspect to this—adose of irony in the insufferable price of a granted wish6—there is nothinginherently illicit about the New Originalism. It would be unfair to saddle today’sNew Originalists with the unreasonable constraining fantasies of their forebears.Indeed, some New Originalists explicitly part company from the Old Originalistsby disavowing any serious claim to judicial constraint. Still, many otherNew Originalists continue to spin rhetoric about judicial constraint—makingpromises that their theory manifestly cannot keep. In addition, numerous selfprofessedoriginalists do not place themselves squarely in either the New or theOld camp. Instead, they muddle about with a foot in each camp, trying to havetheir cake and eat it too. They claim sophistication by drawing upon thetheoretical advances of the New Originalism, while simultaneously claiming themantle of constraint by drawing upon the rhetoric of the Old Originalism, all thewhile failing to recognize that these claims are mutually exclusive.
Very interesting. I’m not quite sure if I agree with the central premise of this article, and that disagreement likely centers on the definition of “constraint.” In one place, Colby discusses judicial restraint and judicial constraint:
New incarnation no longer emphasizes judicial restraint—in the sense ofdeference to legislative majorities—it continues to a substantial degree toemphasize judicial constraint—in the sense of promising to narrow the discretionof judges.
This really oversimplifies what constraint means. I distinguish between judicial contraint qua minimalism–in the Sunstein blend, where Judges go out of their way to not decide cases and move in very small strokes–and judicial constraint qua constitutionalism–that is, the Judge believes that the Constitution has a fixed meaning that dictates what a judge should do, (for example, the Constitution does not protect whatever right people are arguing for, and the Court lacks the institutional capacity to protect that right). If “Judicial constraint was [the] heart and soul—its raison d’eˆtre” of originalism, it seems that constraint would fall into the latter, rather than the former category. Reigning in the excesses of the Warren and Burger Court, proto-originalists found that the Constitution, as originally intended by its framers, did not protect a host of rights recognized by those Courts. While their approach may be described as minimalist in the Sunstein variety, the primary thrust was as constitutional-imposed-restraint, rather than pure counter-majoritarian or discretion-narrowing. With this understanding, I don’t know that I agree with Colby’s conclusions.
If the same Constitution that does not protect right #1 (right to welfare, for example), and causes a Judge to be constrained in case A, protects right #2 (such as Second Amendment rights), a Judge need not be constrained in case B. This seems consistent to me. The originalist view of the Constitution is not a broad proscription for protecting rights. Rather, it compels protecting those rights as originally intended/understood by the Founders, and nor protecting the rights that were not.
The rest of the piece seems to be a fair critique of originalism.