Greg Weiner and Evan Bernick have been conducting an interesting debate in this blog about the virtues of judicial restraint and judicial engagement. Rather than directly confront either position, I would like to raise a methodological point. Doesn’t judicial restraint or judicial engagement need to be rooted in the meaning of the Constitution? In other words, judges’ approach to constitutional interpretation should not be based on policy arguments about how judges should behave but on the original meaning of Constitution itself, just as our interpretation of specific provisions should be fixed by original meaning.
Let me be a little more specific: