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The time has come for constitutional theory to move beyond the stale argument between originalists and living constitutionalists. The declining significance of that debate provides a motivating backdrop for this Article, but it is not the main point of the discussion. Instead, this Article focuses on the possibility of remapping constitutional disagreement in a fresher, more generative, and more descriptively accurate fashion.

The discussion begins with another familiar dichotomy – the distinction between “judicial activism” and “judicial restraint.” Unfortunately, as employed in popular discussion and in some academic literature, this distinction is also confused and unhelpful. However, we can begin to make progress if we recognize that there are subdivisions on both the activism and restraint side of the ledger.

Judicial activists are divided between libertarians and interventionists. Libertarian activists want judges to be active to force or encourage the political branches to be more passive. In contrast, interventionist activists want judges to be active to force or encourage the political branches to be more active.

There is a parallel divide on the judicial restraint side of the line. Some believers in judicial restraint are deferentialists. They want to restrain judges by requiring them to defer to decisions made by other actors.

In contrast, other believers in judicial restraint are anti-discretionists. They too believe in limiting the power of judges, but for them, the worry takes the form of insisting on rules that limit judicial discretion.

This new map focuses our attention on questions that should matter even if they don’t or don’t always. The future of the republic does not turn on issues about linguistics and interpretive theory, especially when it is unclear whether resolution of these issues affects the results in real cases. The future of the republic might well turn on issues relating to the nature of liberty, the appropriate role for courts when reasonable people disagree about constitutional meaning, and the boundary between a public and private sphere.

Publication Citation

Harvard Law & Policy Review, Forthcoming.