originalism and moral skepticism

[Douglas Laycock]

  A while back, when I said something to the effect that originalism
does not lead to restraint -- on this list, I think -- an originalist
responded that that was an obsolete argument -- that no originalist
who had graduated since 1982 claimed that restraint was at all a
purpose or benefit of originalism. 

  Quoting Frank Cross <crossf at mail.utexas.edu>:

>
>>   It seems quite obvious the original meaning originalism is 
>> restrained as compared to some constitutional theories, e.g. as 
>> compared to Dworkin's theory or to strong constitutional 
>> instrumentalism.
>
> I'm immediately skeptical when a sentence is begun with "it seems 
> quite obvious."  It is not so to me.  I think the issue requires a 
> little closer scrutiny, and I've seen little suggesting that
supports
> the claim.
> It may be true, but I am struck that Breyer may be the best example

> of instrumentalism and he also may be the most restrained of the justices.
>
>
>>
>> On 8/24/06, MARK STEIN 
>> <<mailto:markstein at prodigy.net>markstein at prodigy.net> wrote:
>> The "Mark" to whom Tim replies is Mark Graber, but let me just 
>> repeat the old point that originalism is not restraint.  It is one

>> thing to decide moral questions through democratic processes, and 
>> quite another to impose the moral views of the Founders-- views
that
>> on many issues are almost universally rejected today.
>>
>>
>> Mark
>>
>>
>> Mortimer Sellers <<mailto:msellers at ubalt.edu>msellers at ubalt.edu>
wrote:
>> I would like to come out as one of those people (dismissed by Mark
as
>> "mistaken"), who believes that judges and citizens should
generally
>> defer to the liberal protections and democratic processes embedded
in
>> the U.S. Constitution.
>>
>> This gets to the heart of constitutionalism. I think that it is
decent
>> humility, not moral skepticism, which should encourage us to
respect
>> well-designed constitutional procedures of democratic
decision-making.
>> On particular moral questions, I may think that I know the answer,
but
>> be mistaken. This does mean that there is no right answer, but
that I
>> should recognize the possibility of my own error and sometimes
defer to
>> good procedures, even when I have not been completely convinced of
the
>> result that they yield.
>>
>> Tim Sellers
>>
>>
>> --
>> Lawrence Solum
>> John E. Cribbet Professor of Law
>> University of Illinois College of Law
>> 504 East Pennsylvania Avenue
>> Champaign, IL  61820-6909
>> 217.244.3960
>> <mailto:lsolum at gmail.com>lsolum at gmail.com
>> http://lsolum.typepad.com/legaltheory/[1] (blog)
>>
<http://home.law.uiuc.edu/~lsolum/>http://home.law.uiuc.edu/~lsolum/[2]

>> (homepage at the University of Illinois)
>>
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>
> **********************************************************
>
> Frank Cross
> McCombs School of Business
> The University of Texas at Austin
> 1 University Station B6000
> Austin, TX 78712-1178
>

Douglas Laycock
University of Michigan Law School
625 S. State St.
Ann Arbor, MI  48109-1215
  734-647-9713

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