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The Right Judicial Litmus Test

Monday’s Wall Street Journal carried an outstanding opinion piece (subscription required, unfortunately) by Steven Calabresi, who is a professor of law at Northwestern and a cofounder of the Federalist Society. As the Supreme Court starts its new session, Calabresi weighs in on the best way to evaluate the Court’s work.

The proper basis on which we should evaluate the Court’s performance in this term and in the future is not whether it reaches “conservative” or “liberal” results in constitutional cases, but whether it reaches results that are faithful to the Constitution as written and understood at the time of it’s adoption.

Why? Calabresi gives three reasons, the first of which is perhaps the most obvious and compelling.

The long-accepted rule for interpreting legal texts is to construe them to have the original public meaning that they had when they were enacted into law. This is the way we interpret statutes, contracts, wills and even old Supreme Court opinions.

He goes on to explain that both the rule of law and the allocation of powers require originalism. It’s unfortunate that the article is available by subscription only, because it deserves a much wider reading.