Jack Balkin responds to Matthew Franck's critique this morning here. (For a recap of what came before, see here.) In an effort to clarify their differences on constitutional interpretation, he notes that "judicial restraint" and "originalism" are not the same thing (though they may overlap).
Matt's originalism sounds very much like a theory of judicial restraint. Now I for one don't think that originalism and judicial restraint are the same thing. For one thing, judicial restraint is a theory of how judges should act, not a theory of how people in general should interpret the Constitution. Judges are not the only people with the right and the duty to interpret the Constitution. For another, judicial restraint might not be faithful to the Constitution in many cases, especially when the judge believes that the best reading of the Constitution is that certain activities of the other branches are beyond their powers or otherwise unconstitutional. However, in the brief discussion that Matt offers it seems he thinks that originalism and judicial restraint dovetail very significantly. I'd be interested in why that might be so. That would help us focus where we are in agreement and where we disagree.I think this is an important point that is worth developing. To restate it: Originalism is a theory of constitutional interpretation; judicial restraint is a theory of how judges should act. Matthew Franck (like Judge Robert Bork) advocates both an originalist approach to constitutional interpretation and a very limited role for federal judges in correcting or second-guessing the other branches of government. [For an example of an alternative pairing — originalism and judicial "activism" — see the Roger Pilon op-ed I noted here.]
One justification for this approach is that the President and members of Congress are also oath-bound to support and uphold the Constitution, and both are ultimately accountable to the people if they should stray to far in their constitutional constructions. A possible rejoinder is that this crabbed view of the judicial function may be more limited than the original understanding of the judicial function at the time of the founding. One could argue, for example, that the Franck-Bork approach to judicial review is more limited than that elucidated in The Federalist and Marbury. One question for originalists, then, is what conception of the judicial role is itself compelled by the original meaning of the "judicial power."