Contrary to his usual flair for linguistico-historical constitutional originalism on the Scalia model, George Will seems to have taken a step towards coming to terms with the sorts of difficult and at times insoluble interpretative questions responsible readers of texts and traditions face. He writes
>Historians continue to deepen our understanding of how varied and occasionally contradictory were the intentions of the framers and ratifiers. History always informs constitutional deliberations; it rarely is dispositive.
No kidding. But appearances are deceiving. Near the end of a column agreeably rich in such descriptions of the shortcomings of the purely historical and originalist attempts to eliminate liberal discretion (i.e., legislating from the bench) from judging, Will writes,
>In Federalist 78, Alexander Hamilton said that courts have a duty “to declare all acts contrary to the manifest tenor of the Constitution void.” So one of the Constitution’s most distinguished framers thought judges’ discretion must extend to measuring governmental acts against their sense of the document’s “manifest tenor.” The inexpugnable role of judicial discretion demands of judges the virtue Wilkinson calls “modesty.” That is a modest man’s synonym for judiciousness.
And how does one determine which acts are contrary to the “manifest tenor”? Well, judicial discretion demands modesty, which is another word for “judiciousness”. Judicial discretion then demands judiciousness. But what, we are left to wonder, does “judiciousness” demand? My guess is modesty.