In my work I have labeled the dominant iterations of originalism “conservative originalism.” It is an approach that dictates that judges may legitimately recognize only those rights specifically mentioned in the Constitution, or ascertainably implicit in its structure or history. In all other cases, conservative originalists argue, the majority is entitled to govern—to make moral choices—through the political process. “Liberal originalism,” by contrast, maintains that the Constitution should be interpreted in light of the political philosophy of the Declaration of Independence. Liberal originalism rejects both conservative originalism and the notion of a living constitution on the ground that they are merely post-hoc rationalizations for pre-conceived political results.
Liberal originalism insists that conservative originalists mischaracterize the Constitution as establishing a majority-rule democracy, a mischaracterization that is also made by many constitutional theorists of progressive political views. Because of the Framers’ desire to avoid what Elbridge Gerry called the “excess of democracy,” they created a republican form of government, not a majority-rule democracy. And in that republican form of government, the Court is to play a central role: chief guardian of the natural rights of the American people, especially of individuals and minorities. Briefly put, I employ a conservative methodology, but arrive at liberal results, as “liberal” is understood in the classic sense of seventeenth- and eighteenth-century Lockean political philosophy.
... Space constraints permit me to discuss only a couple of the reactions to liberal originalism. ... I will concentrate on the criticisms of two of the other participants at this symposium, Patrick Charles and Lee Strang. I then will discuss Justice Clarence Thomas’s use of liberal originalism and the reactions to his use of it. ... I will conclude this article with some thoughts about the future of liberal originalism.
Scott D. Gerber,
Liberal Originalism: The Declaration of Independence and Constitutional Interpretation - Symposium: History and Meaning of the Constitution,
63 Clev. St. L. Rev.
available at https://engagedscholarship.csuohio.edu/clevstlrev/vol63/iss1/5