And, in The Dynamic Constitution: An Introduction to American Constitutional Law (Cambridge University Press) , Harvard Law Professor Richard Fallon notes that, although conservatives emotionally profess concern about the Supreme Court's "counter-majoritarian" decisions and use "originalist" doctrines to restrain "counter-majoritarian" impulses, "charges of 'counter-majoritarianism ' can be leveled at conservatives as well. Fallon then goes on to cite decisions where seemingly "conservative" Justices were activist is using the Constitution to strike down "numerous pieces of federal regulation" such as prohibitions on violence against women, affirmative action, restrictions on commercial advertising. Had the book been written today, Fallon would have also cited the Court's recent decision in Citizens United, invalidating provisions of the McCain-Feingold election laws, and looked forward with interest to the Court's decision, several years hence, on the constitutionality of national health reform.
The now long-standing debate about "originalism" is thus just part of an argument without end about how to justify the realistic essence of Supreme Court constitutional decisions when it substitutes its judgment for the judgment of other organs of government—or when it chooses not to do so.
I wish we could have a more honest about how the Court actually works—which those who wish to "preserve" the Court's legitimacy shy away from—whether it is controlled by a liberal majority or a conservative one. When construing the great provisions of the constitution in new and vexing cases—protecting free speech, prohibiting establishment of religion, securing due process, requiring equal protection, banning cruel and unusual punishment—and when deciding either to strike down legislative, regulatory, executive or State-originated rules or to sustain them, the Court is filling in uncertain and capacious constitutional content with its choices about constitutional "values."
The choices in these new, difficult cases—whether to strike down or uphold—are not required by immutable principles, unambiguous history, or crystalline holdings from prior cases, however much the Court might like to present the decision as if it were so. They are, instead, as I have noted above, the result of a complex set of factors—both legal and personal—which shape constitutional "values."
Although constitutional language, history and precedent provide limits on the Court's discretion—and the Constitution itself limits the types of cases and controversies which may properly come before the Court— the questions in most controversial contemporary cases are the ones which reflect fundamental tensions in our constitutional system: the separation of powers at the federal level (Congressional, Presidential and Judicial), the appropriate distribution of sole or shared power between the Federal government and the States, and the instances when constitutional guarantees of individual liberty (either enumerated or un-enumerated) protect minorities from an overbearing majority. The nature of these tensions—and how they could generally be reconciled in our dynamic constitutional system—was the great subject of the Federalist Papers, not how those tensions would be resolved in particular cases or the precise intent of the 55 members of the then completed Constitutional Convention.
These profound questions of American government—these fundamental values in tension within our constitutional scheme—are thus the fundamental riddles of judicial review. And no "doctrine" of Supreme Court decision-making—"originalism" or "neutral principles" or "judicial restraint" or "natural law" or "protecting democratic processes" or "protection of rights of minorities unable to protect themselves" or "common law approach"—is going a priori to solve those question which present themselves in the complex factual reality of all hard cases.
Resolving those profound tensions which have no simplistic or rigid answer requires not doctrinal purity, but wisdom and judgment about when the Court should serve as a balance wheel in our society because, for example, other governmental institutions have exceeded their bounds in injuring constitutional values (denials of free speech) or lack present capacity or will to deal with pressing issues that have constitutional dimensions (segregation in Southern states). It has been both restrained and active in our history—sometimes for "good" and sometimes for "ill."
The very nature of the Court's counter-majoritarianism means we as a nation will argue fiercely and endlessly about those good or that ill impacts. It is fine to debate holistic doctrines like "originalism," which seek to justify decisions and the Court's role, however limited they may prove to be in dictating results in an evolving, complex society. But we will also, invariably and properly, debate whether the results of the Court's decisions voiding laws and regulations were wise because other institutions had ridden roughshod over constitutional values or had failed, over time, to demonstrate the ability or will to protect those values enshrined in the Constitution.