Robert H. Henry, who was chief judge of the U.S. Court of Appeals for the 10th Circuit before stepping down to become president of Oklahoma City University in July, addressed the question of constitutional originalism in the 42nd James Madison Lecture on October 12.

James Madison, Henry said, had argued against narrow constitutional originalism in the Federalist Papers. Henry focused in his lecture on the jurisprudence of U.S. Supreme Court Justice John Marshall Harlan II, a conservative-leaning justice who nevertheless concurred in some of the more progressive opinions of the Warren Court. Harlan’s dissent in Poe v. Ullman (1961) laid out his support of a broader reading of the 14th Amendment’s due process clause, but not an unfettered interpretation. Harlan characterized the method as part of a balancing act between individual liberties and societal demands, and described “judgment and restraint” as vital to the process of weighing both literal text and “living” legal traditions in making judicial determinations.

“In one important sense, Justice Harlan could be thought of as an originalist,” Henry said. “He believed that his approach is both faithful to the principles of the nation and more likely to lead to just decisions. He is far more confident than Judge [Robert] Bork that good judges can, as they have for centuries, exercise their authority in a principled, restrained way without requiring an ahistorical, formal rule to constrain them. Justice Harlan was living our traditions.”

Watch the full lecture (1 hr):

Posted on October 19, 2010