Cost-benefit analysis (CBA) and originalism are rarely discussed together, and seem to belong to different legal worlds. CBA is an analytical method used by regulatory agencies to justify regulations such as bank capital limits, automobile safety measures, and particulate matter emission standards. Originalism is a style of interpretation that requires courts to determine the meaning of the Constitution by consulting historical texts. CBA is associated with health, safety, and environmental regulation. Originalism is typically associated with social and cultural issues such as gun control, religious freedom, and reproductive rights. The two methods are used by different institutions in different spheres of law for different purposes; what could they have in common? Nothing, or so it would seem.

Yet closer inspection reveals surprising commonalities—in terms of structure and function, on the one hand, and in historical pedigree and political economy, on the other. Both methods were developed to constrain decision-making. CBA was introduced as a mechanism for preventing agencies from issuing inefficient regulations. Originalism was first justified as a means of preventing judges from enacting their policy preferences. Over the past several decades, critics have seized upon these features, arguing that the excessive rigidity of CBA and originalism compel harmful outcomes.

Critics argue that CBA squelches regulations that might be valuable but whose benefits cannot be easily quantified; a different set of critics charge that originalism dictates that valuable laws or cherished rights must be struck down, no matter the cost. At the same time, critics also argue that the two methods are malleable and serve only to rationalize outcomes reached on other grounds. Both criticisms cannot be correct and in fact reveal a common feature of the methods: they were initially adopted to constrain government actors, but they include just enough safety valves to prevent them from leading to terrible outcomes. This explains some of their appeal and staying power.

Read more at ProMarket