Originalism and Pragmatism: False Friends
Originalism and Pragmatism: False Friends
Jeffrey Rosen, 31 Harv. J.L. & Pub. Pol’y 937 (2008)
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After studying the hard cases and analyzing the results of originalism and pragmatism, I am not convinced that either theory consistently follows through on this promise. Therefore, it seems better for those who care about promoting democracy to abandon these abstract, and ultimately unproductive, methodological debates and to embrace openly a tradition of bipartisan judicial restraint.
This is the tradition of Thayer, of Holmes, of Frankfurter, and most recently of the lamented Justice White. The tradition has no consistent defenders on the current Supreme Court. It would require deference to democratic processes in most situations, striking down very few federal or state laws. Neither originalists nor pragmatists have shown a willingness to embrace such restraint. So when Professors McGinnis and Rappaport challenge us to find a better theory, the theory is clear: defer, defer, defer.