For most of the last half century and more, the scholarly, juridical, and political struggles over the interpretation of the U.S. Constitution have largely revolved around the competing schools of the “living Constitution,” strongly associated with judicial activism and political liberalism, and originalism, strongly associated with judicial restraint and political conservatism. But more recently, the originalist school has undergone significant fissures, with some of its adherents espousing “judicial engagement” and rejecting the counsels of restraint. The consequence is that figures on both the left and the right in our constitutional politics espouse some form of judicial activism. But the self-described originalists who fit this description have paid insufficient attention to the original understanding of the judicial power, which earlier generations of scholars devoted to restraint understood better.
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