In this previous post, former Solicitor General and unsuccessful Supreme Court nominee Robert H. Bork provided a handy shorthand description of the judicial philosophy of originalism. In a letter to Wall Street Journal’s ($) editor yesterday, Richard A. Epstein — the James Parker Hall Distinguished Service Professor of Law at the University of Chicago and the Peter and Kirsten Bedford Senior Fellow at the Hoover Institution (previous post here) — provides an equally tidy explanation of the primary criticism of the originalist approach to interpreting the Constitution:

[Mr. Bork] is wrong to assume that his brand of originalism is the preferred form of constitutional interpretation, much less the only means to combat inherent tendency of left-wing judges to improperly expand the scope of judicial power.

First, the best modes of interpretation do not rely on an assortment of secondary texts that detract attention from the text and structure of the Constitution. Why buy into endless disputes over which newspaper said what when standard dictionaries and contemporary usage can often lead to clearer results. The best readings of the Commerce Clause take only the common usage of the term — trade as opposed to manufacture — without reliance on the words of a single drafter or ratifier. It was for good reason that the ratification debates were not published when the Constitution was drafted. It had to stand on its own.
Second, structural considerations often require us to go beyond the text, but in principled fashion. The Constitution prohibits a tax on imports. Chief Justice Marshall rightly extended that protection to cover taxes on importers designed to circumvent a rule intended to preserve a national market. He was right to do so without any explicit blessing from the Framers.
Finally, there is no necessary reason to think that faithful constitutional interpretation leads to an expansion of legislative power. That is not true with the Commerce Clause, nor should it be true in dealing with such matters as economic regulation or abortion. Mr. Bork is much closer to the mark on abortion in Roe v. Wade because any sensible interpretation of the police power (not found in the written Constitution) would include the protection of innocent life. But he is wrong on the 10-hour work-day in Lochner v. New York, where the police power should not be allowed to advance protectionists’ economic regime.
Our Constitution is a charter for economic liberty and limited government. It contains no full-throated endorsement of popular democracy at either the federal or state level.

Thus, in matters of Constitutional interpretation, be wary of labels. A strict originalist approach that overly restricts judicial activism can lead to as much injustice as the opposite extreme. Indeed, a lack of judicial activism has been at the root of the appalling lack of judicial intervention that we have seen over the past several years as numerous judges have failed to uphold the Constitution’s balance of power and rein in the executive branch’s dubious criminalization of business during the post-Enron era.
Consequently, criticism of judicial activism and advocacy of strict constructionism is often merely a political front for deference to the abusive exercise of state power. For example, the Supreme Court’s recent unanimous decision in the Arthur Andersen was judicial activism being used to right an injustice, albeit better late than never. On the other hand, the Supreme Court’s recent decision in Kelo v. The City of New London could easily be construed as an example of originalist deference to legislative action where judidial activism was desperately needed to prevent the courts from eviserating the text and purposes of the “Public Use” Clause.