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Opinion The Supreme Court embraces originalism — and all its flaws

(Washington Post illustration/iStock images)

David Cole is national legal director of the American Civil Liberties Union and a professor at Georgetown University Law Center.

If you were tasked with solving a difficult social problem today, you might go about it in any number of ways. You could consult experts, study past approaches, conduct experiments or run pilot projects. You might even Google it. But for most of us, asking exclusively how we did things in the 18th and 19th centuries would not be our first, or even last, choice. Yet that’s precisely what the Supreme Court did last week in its two blockbuster decisions overruling Roe v. Wade and striking down New York’s regulation of carrying guns in public.

In Dobbs v. Jackson Women’s Health Organization, the court reasoned that because abortion was not protected in 1868, when the 14th Amendment was adopted, it is not protected today, even though it had been guaranteed for nearly 50 years and closely parallels other rights — to bodily integrity and personal autonomy — that are at the core of the “liberty” the 14th Amendment protects. And in New York State Rifle & Pistol Association v. Bruen, the court ruled that states can regulate the inherently dangerous act of carrying guns in public only if they can point to a specific historical analogue in the 18th or 19th century — no matter how different the problems of gun violence are today.

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The decisions mark, for now, the triumph of originalism, a radically conservative judicial philosophy that maintains that the only legitimate way to decide constitutional disputes is to ask how they would have been resolved when the Constitution was drafted. That theory has been an outlier throughout most of the nation’s history but suddenly has five votes, enough to garner a majority. (Chief Justice John G. Roberts Jr. is a sometimes-originalist, though he did not sign on to that approach in Dobbs.) Yet never have this theory’s weaknesses been more vividly on display.

Originalism sounds sensible at first blush. If we are to be bound by a constitution, the argument goes, we should ask what it meant at the time it was adopted.

But this approach ignores fundamental changes in our society. As the dissenting opinion of Justices Stephen G. Breyer, Elena Kagan and Sonia Sotomayor in Dobbs pointed out, there is an obvious reason abortion was not protected in 1868: Women were not seen as free and equal citizens. They lacked the right to vote and could be barred from any number of jobs, including the legal profession, because, as it was commonly said, a woman’s place was in the home. It’s not surprising that the men who adopted and ratified the 14th Amendment did not explicitly protect abortion. What is surprising is why we should be bound by their views today.

In the name of a newfound fidelity to the past, the court, in the words of the dissent, consigned “women to second-class citizenship.” They can be forced to carry a pregnancy to term, even if it was unplanned or the result of rape or incest, or the fetus has a severe abnormality.

So, too, the court’s gun decision demanded blind adherence to history — even though times have changed. In the 18th and 19th centuries, there were no AR-15 assault weapons, armor-piercing bullets or “ghost guns.” Children could not buy firearms on the internet. There were not 400 million guns in circulation. And people lived largely in rural settings that lacked the population density that today makes many inner cities the sites of all-too-frequent gun violence. All that is irrelevant, the court ruled. The only question is whether there were analogues to New York’s regulation in the 1700s or 1800s.

In fact, there were many, dating from 13th-century England into the 19th century and beyond. Governments have historically sought to restrict citizens’ carrying weapons in public. But Justice Clarence Thomas, writing for the majority, found some way to treat every analogue as different, often for conflicting reasons. Instead of being bound by history, he simply dismissed all the historical examples that contradicted his preferred result.

The originalist adherence to history has many flaws, all of them in evidence last week. First, assessing what the historical record says with respect to a modern legal question can be extraordinarily difficult. That Thomas found ways to dismiss so many historical examples over six centuries illustrates the problem.

Second, even where one can agree on the historical facts, assessing at what level of generality or specificity they should be viewed is not dictated by the Constitution. And that gives judges substantial discretion. Take Kennedy v. Bremerton School District, for example, in which the court yet again relied on “history and tradition” to reject decades of precedent and ruled that the free exercise clause required a public high school to permit its football coach to pray ostentatiously at the 50-yard line after games. There is no history from the time of the founding protecting such a right; on the contrary, James Madison and Thomas Jefferson insisted on strict separation of church and state. So instead, the court invoked what it vaguely called a history of toleration as “part of learning how to live in a pluralistic society.” At that level of abstraction, history can support virtually any result.

Third, the vast majority of Supreme Court justices over the two centuries of its existence have not been originalists but have instead interpreted the Constitution as evolving, through the application of broad principles to new circumstances and developing fundamental norms. The five “originalist” justices now sitting on the court are among the only justices that have ever taken that view (Justice Antonin Scalia would make a sixth). But that means that to adopt their approach consistently would necessarily upend over 200 years of precedent developed by justices who rejected originalism. It would mean not only that marriage equality and the right to contraception would be eliminated but also that racial segregation would be legal, women would not be protected by the equal protection clause and children could be executed.

Most fundamentally, originalism does not make sense on its own terms because the Constitution’s framers themselves did not intend us to be tied to the specific understandings that governed their time. That’s why they used open-ended terms such as “liberty,” “due process” and “equal protection.” As Chief Justice John Marshall wrote in McCulloch v. Maryland, the Constitution was “intended to endure for ages to come,” capable of adapting to a future “seen dimly.”

No one disputes that the original understanding is relevant, if it can be gleaned. It’s at least a starting point. But for a majority on today’s court, it’s not just a relevant factor — it’s the only consideration. In the name of history, the court has for the first time wholly eliminated a right that half the nation has relied upon for half a century and prohibited states from protecting the public from today’s scourge of gun violence in any way that was not in place more than 150 years ago. Never has history been more radical — or more wrongheaded.