Will Wilkinson has a post at The Economist, taking issue with Orrin Kerr, re: the Vinson decision.

Kerr:

The core problem, I think, is that Supreme Court doctrine has strayed far from the original meaning of the scope of federal power granted by the Constitution. Today’s constitutional doctrine permits a scope of federal power that is much broader than the original meaning of the Commerce Clause and Necessary and Proper clause would allow. When interpreting the scope of federal power, then, you need to decide what you will follow: The original meaning or case precedents. As I read Judge Vinson’s opinion, he mixes the two. Judge Vinson jumps back and forth between purporting to apply Supreme Court precedents and purporting to interpret the Commerce Clause and Necessary and Proper clause in light of its original meaning. Judge Vinson spends about half of the legal analysis on original meaning and about half of the legal analysis on precedent, and he seems to treat both as important.

Wilkinson:

I agree with Mr Kerr that the freshest, topmost layer of the body of constitutional interpretation built up over the ages by the myriad sages of the Supreme Court is at best tenuously connected with the meaning of the hallowed document ordinary Americans imagine to govern their republic. What I don’t understand is Mr Kerr’s objection to mixing respect for precedent and original meaning in rendering judgments about the “constitutionality” of legislation

This is a perfect illustration of what I was talking about in this post – and the rather invigorating thread that went with it. Originalism is incompatible with respect for precedent. Kerr is getting at this, but he isn’t as clear as he might be. If you just substitute ‘originalism’ in that first passage for ‘the original meaning’ it becomes clear. Wilkinson’s objection is met: obviously you can combine combine respect for original meaning with respect for precedent (that’s Will’s objection). But the philosophy that sees and advocates this practical possibility is the ‘living constitution’ view, nemesis of originalism. What you can’t do is combine originalism with respect for precedent, in coherent philosophical fashion. [click to continue…]