Over at Bench Memos, Matthew Franck has an interesting post on “the strange turn George F. Will has taken toward endorsing judicial activism — and the way in which his constitutional views today constitute an unacknowledged contradiction of arguments he has made many times before.” I’ve noticed something similar in Will’s recent columns. I suppose the most cynical explanation is that arguments in favor of judicial restraint seem sound when your side is in the minority, while arguments in favor judicial activism come to seem rather enlightened when your side happens to have five votes. Or is there a less cynical explanation?
UPDATE: In the comment thread, my co-blogger Ilya Somin suggests that Will’s “commitment to originalism” may explain the difference: Perhaps “he has been influenced by the last 25 years of scholarship showing that many restraints on government power have strong roots in the original meaning of the Constitution.” This explanation strikes me as problematic because Will’s arguments in his recent columns do not appear to be originalist.