Recently, I started following a constitutional law professor listserv for the first time in many years. The listserv is dominated by a certain form of liberal nonoriginalism that might be called activist. One justice who I believe reflects this approach was Justice Brennan, but some current members of the Court might be included in this group as well. This has gotten me thinking a bit about the methodology of activist liberal nonoriginalism.
What is striking about this approach is how much of an overlap there is between a person’s political views and his views on the meaning of the Constitution. This overlap is so strong that might wonder whether the content of constitutional law under this approach is simply one’s political views.
While the person’s political views are a first approximation of the content of constitutional law under this approach, I do think there are some constraints on constitutional law under this approach. First, the constitutional text might seem like a constraint, and in some cases (such as the Senate containing two Senators from each state) it does constrain. But, as anyone trained in these matters knows, one can derive a great many meanings from the words of the Constitution, especially if one accepts relatively loose derivations, as do practitioners of this approach.