Originalism moves from theory to high court. What that means for US.

Focus

In June 1986, at an otherwise nondescript Attorney General’s Conference on Economic Liberties, Antonin Scalia made an iconic sales pitch.

Originalism – a judicial theory holding that the Constitution should be interpreted in line with the framers’ thinking – needed rebranding, he told the conference. Originalists, he said, “ought to campaign to change the label from the doctrine of original intent to the doctrine of original meaning.”

In other words, instead of trying to intuit what James Madison or Alexander Hamilton may have intended, rely on what the public would have understood their words to mean at the time, using contemporary dictionaries and news coverage among other sources.

Months later, then-Judge Scalia would be appointed to the U.S. Supreme Court. He would become a pioneer of original meaning originalism, and constitutional law would never be the same again.

His new wording has come to redefine the family of theories that comprise “originalism.” And it hints at the complexity and evolution underlying what seems, at first glance, a straightforward judicial philosophy.

It has also never had more influence over the rights of Americans than it does now. Up to five Supreme Court justices could be considered originalists, and the theory is now commonplace in American courts. With high court rulings on gun rights, abortion, and religion expected in the coming year, originalism appears poised to define a new era in American constitutional rights jurisprudence. What that means for Americans, and for the court itself, remains to be seen.

There’s no question that originalism has changed constitutional law, says Franita Tolson, a professor at the University of Southern California Gould School of Law. History and text are much more of a focus than they used to be.

“The history is the starting point, the text is the starting point, and I think originalism reminds us of that,” she says, adding that she doesn’t think the philosophy is “inherently bad.”

But “as a society do we want to be constrained by the views of men that died 200 years ago? And more importantly, does the Constitution require that?” she continues. “To me that’s the question: starting point versus end point.”

Critics view originalism as a theory that is misleading at best, making promises of judicial restraint and impartiality that it won’t deliver in practice. 

But the philosophy comes in a variety of styles and flavors. Practice differs from theory, and – as with any legal theory – it has disagreements and flaws.

“I consider [originalism] to be the natural and normal way in which anyone would interpret – or at least begin to interpret – a text written more than 200 years ago,” says Michael McConnell, a professor at Stanford Law School and former judge on the U.S. 10th Circuit Court of Appeals.

When judges “latch onto the language of the Constitution and give it their own preferred interpretation,” he adds, “they’re not really doing constitutional law. They’re just doing a form of politics wearing a robe.”

For her part, Justice Sonia Sotomayor, one of the Supreme Court’s three liberals, appears skeptical that originalism will help bolster the court’s institutional credibility. In October, a law professor asked if the theory will become “increasingly untenable” as the country’s makeup continues to depart significantly from the time of the framers. The lack of human rights afforded women and African Americans in the original Constitution are a glaring example. Other changes include an America that no longer identifies as majority Christian and that has legalized marriage equality and civil rights for LGBTQ Americans.

“Whether and how that will lead to dissonance between what we are deciding and what the general population accepts as what the law should be,” she answered, “is a fascinating question.”

The Constitution’s “original purpose”

As far back as Chief Justice John Marshall, members of the court have occasionally cited original meaning as a factor in their interpretations. But as a distinct legal theory, originalism is relatively new. While Scalia may have been the most prominent proponent, its roots can be traced back to Justice Hugo Black – ironically one of the more liberal justices in Supreme Court history.

A fierce advocate of the “original purpose” of the Constitution’s text, he made the early legal arguments for extending the Bill of Rights to the states. (Until the 1960s, the Bill of Rights protections only applied to the federal government.)

He believed in strict interpretations of the Constitution. Thus, he didn’t think there is a constitutional right to privacy, or that conduct like flag burning is protected by the First Amendment. And he believed that the judiciary should act with great restraint.

Beginning in the 1970s, conservative legal scholars were “very heavily influenced by Hugo Black,” says Jack Balkin, a professor at Yale Law School and one of the country’s most prominent liberal originalists. 

“A lot of his opinions are about original intention,” he adds. But conservative scholars “take it in a slightly different direction.”

Those decades saw the Supreme Court play a key role in expanding civil and constitutional rights, including desegregation (Brown v. Board of Education); the right to counsel for criminal defendants (Gideon v. Wainwright); and the right to abortion (Roe v. Wade). Citing Justice Black, conservatives critiqued the rulings as justices exerting their own values on the country.

“A Court that makes rather than implements value choices cannot be squared with the presuppositions of a democratic society,” wrote Judge Robert Bork in a 1971 law review article. To do otherwise, he continued, would be for the court to act as “an institutionalized ... perpetrator of limited coups d’etat.”

He argued that judges should restrict themselves to following the “original intent” of the Founders.

Justice Scalia, earlier in his career, held similar views of originalism as a mechanism for judicial restraint – until his 1986 pivot from “original intent” to a focus on “original public meaning.”

There were several reasons this made sense for originalists.

The intent of historical figures like Madison and Hamilton “is very difficult to discern, and sometimes doesn’t even exist,” says Lawrence Solum, an originalist scholar at the University of Virginia School of Law.

“The [original] public meaning of the constitutional text is something that we can almost always figure out, and then apply it to contemporary circumstances,” he adds.

But there was a broader, political context to the shift. By the end of the Ronald Reagan and George H.W. Bush administrations, the conservative legal movement was no longer on the outside critiquing the liberal overreach of the Warren court. It was now in power.

“Old originalism thrived only in opposition,” wrote originalist scholar Keith Whittington in a 2004 essay. As conservative jurists found themselves in the majority, he added, they needed to develop a theory that could guide majority opinions and not just dissents.

This “new originalism,” he continued, “is less likely to emphasize a primary commitment to judicial restraint.” Historical research has replaced the “high-level theoretical arguments” of people like Bork. The original public meaning of constitutional text is fixed, it asserts, but it can be applied to new facts and circumstances.  

Critics argue this has made originalism as unpredictable and judge-empowering as other theories of constitutional interpretation.

“Sitting here in the present day using books and articles from a long, long time ago to decide what a provision of the Constitution means [gives judges] a lot of discretion,” says Kimberly West-Faulcon, a professor at Loyola Law School in Los Angeles.

The Supreme Court’s first originalist decision

That discretion was on full display in the Supreme Court’s only, to date, originalist majority opinion: District of Columbia v. Heller in 2008.

Both the majority opinion and the main dissent in the 5-4 ruling made originalism-heavy arguments. In the end, the majority voted to reinterpret the Second Amendment to protect an individual right to have a handgun in the home.

Today’s Supreme Court has an even stronger originalist bent. Justices Clarence Thomas, Neil Gorsuch and Amy Coney Barrett all have strong originalist backgrounds. Justices Samuel Alito and Brett Kavanaugh also seem originalist-inclined.

What this heralds for how constitutional rights will be interpreted moving forward is difficult to predict.

One near certainty is that the Second Amendment is going to be debated on originalist grounds. A gun rights case the justices heard in November saw a torrent of textual and historical arguments from both sides. Amicus briefs discussed 13th-century English law, the 1328 Statute of Northampton, and a 1770 state law in Georgia.

By the end of the oral argument, a majority all sounded willing to strike down a New York gun regulation. The justices also made clear that the original meaning of the Second Amendment and historical gun regulations would be central to their analysis. What they didn’t make clear was how that text and history should be analyzed.

“This is a wonderful case for showing both sides,” said Justice Stephen Breyer. “I’m not sure how to deal with the history.”

“The question is how to use history,” agreed Justice Elena Kagan. “How far up do you look? … With what sense of flexibility do you look?” she added. “Because we realize that the world has changed.”

Originalists have sought to thread this needle with a continuation of Scalia’s argument. While the “original public meaning” of constitutional text is fixed, they say, the factual circumstances around it can change.

Thus, while women were considered “covered” by their husbands or fathers, with few rights of their own, when the Constitution was ratified – and only a woman’s right to vote is now explicitly recognized by the 19th Amendment – originalists read women’s rights into the Constitution today because the words “person” and “citizen” now can be read to include women.

For some legal scholars, this nullifies most of the restraint originalism claims to own. Critics, for example, point out that abortion was legal under common law until about 1880. While the 14th Amendment was debated, the legality of abortion during the time of the founders was not discussed by any of the originalist justices during oral arguments during Dobbs v. Jackson, the case that is likely to shrink abortion rights if not completely overturn Roe.

“The entire premise of new originalism, that the original meaning of the Constitution is fixed, is absurd,” says Eric Segall, a professor at  Georgia State University College of Law and author of “Originalism as Faith.”

Some specific provisions may be fixed, like having two U.S. senators from each state, or that the president must be at least 35, but those provisions don’t tend to be litigated.

Critics point out that the hard questions concerning vague provisions are what the Supreme Court has to grapple with, such as clauses stating that people can’t be “deprived of life, liberty, or property without due process of law.”

“We don’t know what ‘due process’ means,” says Professor Segall. “Vague phrasings can’t have fixed meanings.”

This critique strikes at a core feature of modern originalism: the difference between the theoretical and the practical.

Scholars can do research to help cast light on what the actual meaning of the Constitution is, says Professor McConnell. Judges “have the practical job of applying it to real cases and to deal with precedents over time, and deal with prudence in judgment.”

“It’s not surprising that the answers that they give are sometimes a little different,” he adds.

“Cafeteria originalists”

Professor Balkin has a harsher assessment. Almost all judges he says, are what he calls “cafeteria originalists.”

“They invoke originalist rhetoric when it is convenient, and when it is not convenient they do not invoke it,” he adds.

This is the most originalist Supreme Court in American history, and it is also the most conservative Supreme Court in nearly a century. That, as much as any originalist rhetoric, critics say, is going to determine how constitutional rights are interpreted – and reinterpreted – moving forward.

The country could be poised for a shift in law as dramatic as that conducted by the Warren and Burger courts, they say. Originalist scholars, meanwhile, believe that as the theory matures, the judicial discretion it may currently allow will be restricted.

“Most constitutional issues would be settled by careful research into the original meaning of the constitutional text,” says Professor Solum.

And in the long run, he adds, a consistently originalist Supreme Court “would result in the perception that the court is a less political body, and it would be likely to restore trust in the court.”