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Thayerian judicial restraint is most salient where one can offer a non-frivolous interpretation of the Constitution to uphold a law, but the judge believes that the interpretation, though not obviously wrong, is nonetheless incorrect. A Thayerian judge, loyal as he is to the principle of not striking down the will of the majority unless its unconstitutionality is "not open to rational question," would uphold the law under these conditions.
But few matters in constitutional law are obvious, and originalists can and do disagree about original meaning. The weight of historical materials might point toward one interpretation, but that does not make another interpretation frivolous. Few challenges could meet the Thayerian criterion, and a great many laws that the Court in its best judgment believes to be unconstitutional would thus be upheld. When this occurs, the Court abandons the duty that authorizes judicial review in the first place: to guard the limits of governmental power when a concrete dispute requires that those limits be enforced.
More fundamentally, the idea of Thayerian judicial restraint implicitly privileges ordinary politics over the sovereign will. Thayer is prepared to countenance violations of the sovereign will (where those violations are not obvious) out of deference to current majorities. In their focus on the counter-majoritarian difficulty, advocates of Thayerian judicial restraint turn away from the will of the sovereign people. The distinction between constitutional and ordinary politics collapses.
