Libertarianism, conservatism, and judicial review - The Volokh Conspiracy

[Luis Gonzalez]

Libertarianism, conservatism, and judicial review
By Ilya Somin
The Volokh Conspiracy

Excerpt:

(J)udicial review may have a greater role to play in protecting rights today, than might have been supposed in the 1780s. In a world where the size and scope of government is vastly greater than it was 225 years ago, it is far more difficult for voters with limited knowledge and attention spans to police all the many different possible ways in which government threatens liberty.

On the issue of originalism, Lawler laments that decisions such as Lawrence v. Texas, Roe v. Wade, and United States v. Windsor cannot be squared with originalism because “[n]one of the Framers would have recognized a constitutional right to an abortion or to same-sex marriage.” But most modern originalists – including conservatives such as Steve Calabresi and the late Robert Bork – do not base originalism on “original intent” – the specific intentions and expectations of the framers. The dominant version of originalism is now “original public meaning”: the idea that the words of the Constitution should be interpreted in accordance with the public understanding of the words at the time of enactment. Often, the original meaning of a constitutional provision is a broad general principle that courts and others must apply to changing social conditions and increasing knowledge of relevant facts. For example, most originalists agree that the Fourth Amendment restricts wiretapping and that the First Amendment protects speech on the internet, even though the Founding Fathers probably could not have imagined either situation. The combination of fixed principles, changing social conditions, and new scientific knowledge yields decisions protecting old rights in new ways that are nonetheless consistent with originalism.

Similarly, the combination of Fourteenth Amendment principles and increasing factual knowledge about the nature of homosexuality and the capabilities of women leads to a powerful originalist argument against laws banning same-sex marriage.

http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/12/26/libertarianism-conservatism-and-judicial-review/