Liberal lawyers — and liberal justices, for that matter — risk being caught in an originalism trap.
Given that reality, liberals can’t lightly dismiss conservatives’ insistence that the Constitution should be interpreted based strictly on the original meaning of its text. In the current circumstances, liberal advocates appearing before the court would be remiss not to make an originalist case.
But there’s also little evidence, at least in the highest-profile cases, that it will do them much good. When originalist arguments favor a result the conservative justices dislike, they’re content to ignore them, or to cherry-pick competing originalist interpretations that comport with their underlying inclinations. Originalism doesn’t serve to constrain but to justify. This is not a fair fight — or an honest one.
And it is one with dangerous consequences. The more liberals present originalist arguments, the more they legitimate originalism rather than refuting it and offering a compelling alternative. Courtroom advocates need to win the case at hand, yet that undermines the more critical long-term effort to wrench the court away from its reliance on what is, at least as currently practiced, a flawed doctrine that peddles the illusion of impartiality in the service of a conservative result.
Because originalism purports to freeze our understanding of the Constitution as written at the end of the 18th century or amended in the second half of the 19th, it is skewed to a cramped reading of the document, unleavened by modern science and sensibilities. Why should we understand — much less accept — the constitutional meaning as fixed at a time when women lacked the right to vote, when recently enslaved Black people attended segregated schools, when the economy was agrarian, and when the notion of gay rights was unthinkable?
One prominent recent example of those flirting with originalism involves the newest justice, Ketanji Brown Jackson. “I believe that the Constitution is fixed in its meaning,” Jackson said at her confirmation hearings in March. “I believe that it’s appropriate to look at the original intent, original public meaning, of the words when one is trying to assess because, again, that’s a limitation on my authority to import my own policy.”
When the Supreme Court heard a Voting Rights Act case in October, Jackson turned to originalism to rebut the argument that the law would be unconstitutional if it permitted race to be taken into account in drawing district lines.
“I understood that we looked at the history and traditions of the Constitution, at what the framers and the Founders thought about. And when I drilled down to that level of analysis, it became clear to me that the framers themselves adopted the equal protection clause … in a race conscious way,” Jackson said. “I don’t think that the historical record establishes that the Founders believed that race neutrality or race blindness was required, right?”
Jackson is correct — but that’s a different matter than saying that her originalist point has much hope of winning the day with her conservative colleagues. They are locked into a different vision: that the Constitution mandates strict colorblindness, and they aren’t apt to be swayed by citations of the 1866 Report of the Joint Committee on Reconstruction.
And that’s the trap. Playing by originalist rules might help liberal justices gain the high ground when it comes to intellectual honesty, but it risks entrenching the assumption that originalism is the one true method of constitutional interpretation. Originalism is the “no new taxes” of constitutional theory, as easy to understand as it is insipid; there is no similar progressive alternative that can be reduced to a bumper-sticker slogan.
Yes, there are liberal originalists, but their version of originalism, emphasizing the framers’ use of deliberately broad language in constructing constitutional guarantees, ends up looking a lot like the “living constitutionalism” liberal decisions that conservative originalists deride as loosey-goosey.
In short, the project of taking on originalism is urgent — indeed, overdue. It might begin with the cheeky title of a 2009 law review article by University of Pennsylvania law professor Mitchell N. Berman: “Originalism is Bunk.”
Originalism was a fringe legal theory when it was developed beginning in the early 1970s. It arose in reaction to the perceived excesses of the Warren Court, which had worked a legal revolution in the 1950s and 1960s with freewheeling decisions on the rights of criminal defendants, civil liberties and voting rights — among other issues — that conservative critics said were grounded in the majority’s policy preferences more than in the Constitution itself.
Among those developing an alternative, and supposedly more legitimate, legal theory was Robert H. Bork, then a Yale Law School professor. In a 1971 Indiana Law Journal article that was to become famous during his failed Supreme Court confirmation hearings 16 years later, Bork first laid out what came to be called originalism. (The term was coined by a liberal critic, Stanford Law professor Paul Brest.) “Where constitutional materials do not clearly specify the value to be preferred, there is no principled way to prefer any claimed human value to any other,” Bork wrote. “The judge must stick close to the text and the history, and their fair implications, and not construct new rights.”
Bork’s prime example of where the court had gone wrong is one that helped doom his nomination — and remains chilling today: Griswold v. Connecticut, the 1965 case that, citing “zones of privacy” in the Constitution, struck down a Connecticut law making it a crime for married couples to obtain contraception. He termed Griswold “an unprincipled decision, both in the way in which it derives a new constitutional right and in the way it defines that right, or rather fails to define it,” adding, “the only course for a principled Court is to let the majority have its way.”
Bork’s mantra was taken up a decade later during the Reagan administration, with Attorney General Edwin Meese III championing a “jurisprudence of original intention.” That approach, Meese argued in a 1985 speech to the American Bar Association, “would produce defensible principles of government that would not be tainted by ideological predilection.” By contrast, he said, “any other standard suffers the defect of pouring new meaning into old words, thus creating new powers and new rights totally at odds with the logic of our Constitution and its commitment to the rule of law.”
What began as a hunt for “original intent” evolved into a search for “original public meaning,” after adherents recognized that different Founders had different intentions in writing and ratifying the document. But the stated goal remained the same: to provide a supposedly neutral guide by which judges could reliably interpret the Constitution — and avoid substituting their personal views. By the 1990s, originalism was the interpretive approach broadly endorsed by the conservative legal movement.
It would take decades longer for originalism to gain more than a minor toehold on the high court. The year before Bork was defeated, Antonin Scalia, another originalist, sailed through the Senate confirmation process by a vote of 98-0; Democrats had decided to train their fire on defeating the simultaneous elevation of William H. Rehnquist to be chief justice. Scalia was joined in 1991 by Clarence Thomas, who outdid Scalia in his originalist zeal. “I’m an originalist, but I’m not a nut,” Scalia said of the difference between himself and Thomas.
But the pair remained on the edges of the court’s jurisprudence. It was not until the Trump administration, and the addition of three justices schooled in the originalist traditions of the Federalist Society — Neil M. Gorsuch, Amy Coney Barrett and, to a lesser extent, Brett M. Kavanaugh — that a powerful originalist bloc coalesced.
Originalism may not yet be the undisputed law of the land. There is a pull and tug among the conservative justices over what deference is due to precedents not grounded in originalism; Thomas is the most steadfast in stating that he would discard such cases, while others, such as Alito, emphasize that, unlike scholars, originalist judges are not starting from a blank slate. Nonetheless, its emergence has been remarkable and its influence impossible to overstate.
What Georgetown University law professor Randy E. Barnett has termed the “gravitational force of originalism” has exerted its pull on the justices, conservative and liberal. In an interview, Barnett pointed to Jackson’s confirmation testimony. “As somebody who’s been in the business a long time, it just shows how far we’ve come in establishing originalism as the norm,” he said.
And at no point more than in the most recent Supreme Court term, even as some originalists argue that the court’s approach hasn’t been pure enough. “This last term the court really revolutionized how originalism plays a role in constitutional law,” said Josh Blackman, professor at South Texas College of Law, pointing to the court’s decisions last term on abortion, gun rights and the separation of church and state. “In all three areas of major significance the court injected originalism. … This has been said here and there in the past, but never as explicitly as in the past few months.”
Originalism sounds both obvious and alluring. Of course, the text of any document must be the starting point for understanding it; that has always been an important part of the legal method, and no one is suggesting that it be abandoned. Of course, judges should do their best not to act, as conservatives might say, like “legislators in robes.”
But originalism trends almost inexorably right. As Justice William J. Brennan Jr. explained in a 1985 speech responding to Meese, originalism “in effect establishes a presumption of resolving textual ambiguities against the claim of constitutional right.”
Which is precisely why it was taken up by Meese and company. “They embraced originalism because it was conservative,” said Michael Waldman, president and chief executive of the Brennan Center for Justice and author of a forthcoming book on the court. “They didn’t embrace conservatism because it was originalist.”
Even beyond that, originalism suffers from multiple flaws. It offers the mere mirage of objectivity and therefore of constraint. It is self-refuting: The Constitution itself was deliberately written with grand, magisterial phrases — what Chief Justice Charles Evans Hughes in 1934 called “the great clauses of the Constitution” — meant to be interpreted by future generations. It is incapable of being strictly enforced without producing repugnant results, which is why Scalia once described himself as a “fainthearted originalist.” And the court’s supposed adherents are originalists of convenience: They apply the method when it suits their purposes and dispense with it when necessary.
Originalism as mirage
The shifting forms of originalism — from trying to discern the intent of the document’s framers, or maybe those who ratified it, to hunting for the original meaning of the words they used — suggests the fundamental futility of the enterprise. “For most constitutional provisions, there is no ‘original meaning’ to be discovered,” Berkeley law dean Erwin Chemerinsky writes in a new book, “Worse Than Nothing: The Dangerous Fallacy of Originalism.” Rather, he says, “there is a range of possibilities that allows for exactly the kind of judicial discretion that originalism seeks to eliminate.” The founding-era documents are incomplete and contradictory; there are many constitutional questions for which they supply no answer.
As Justice Robert H. Jackson observed in the 1952 Steel Seizure case, “Just what our forefathers did envision, or would have envisioned had they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh. A century and a half of partisan debate and scholarly speculation yields no net result but only supplies more or less apt quotations from respected sources on each side of any question. They largely cancel each other.”
In recent years, one new weapon has been added to the originalist arsenal. Called “corpus linguistics,” it uses large databases of documents from the relevant historical periods to conduct computer searches of key words and phrases to determine their original public meanings. This technique has the advantage of moving the debate beyond competing dictionary definitions, and courts have started to employ it, in both statutory and constitutional interpretation.
But corpus linguistics often seems to justify predetermined ends. For example, U.S. District Judge Kathryn Kimball Mizelle, a Trump appointee, in April struck down the Biden administration’s mask mandate for public transportation. The mask regulation was based on a law that gives the Centers for Disease Control and Prevention authority “to make and enforce such regulations as in [its] judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases,” and says it “may provide for such inspection, fumigation, disinfection, sanitation … and other measures as in [its] judgment may be necessary.”
Mizelle, focusing on the term “sanitation,” used a corpus linguistics database to find uses of the word between 1930 and 1944, around the time the CDC law was written. “Of the 507 results, the most frequent usage of sanitation fit the primary sense described above: a positive act to make a thing or place clean. … In contrast, by far the least common usage — hovering about 5% of the data set — was of sanitation as a measure to maintain a status of cleanliness, or as a barrier to keep something clean.”
Really? The law gives the CDC broad authority. Mizelle used corpus linguistics to limit rather than to comprehend.
And corpus linguistics can produce ambiguous results. In the New York gun case the Supreme Court decided last term, professors specializing in corpus linguistics filed a friend-of-the-court brief arguing that newly discovered textual evidence cast doubt on the court’s controversial 2008 decision in District of Columbia v. Heller that the Second Amendment protects an individual’s right to bear arms.
“Using this new technology, corpus linguistics researchers have unearthed a wealth of new evidence demonstrating that the phrase ‘keep and bear arms’ provides no support for any broad, unfettered right to carry arms,” the brief argued. “Rather, the evidence demonstrates that the phrase possessed a collective, militaristic meaning at the Founding. And consistent with that collective, militaristic meaning, the [texts] confirm that ordinary Founding-era voters would have understood that the right to keep and bear arms was subject to regulation.”
Other scholars supportive of gun rights have employed corpus linguistics and come up with less conclusive results. “On balance, a corpus linguistics analysis shows that the meaning of … the Second Amendment is a much closer call than either the Heller majority or the dissent were willing to admit,” Chapman University law professor James C. Phillips and Josh Blackman concluded in a 2021 law review article. “In fact, we found linguistic evidence that supports both views.”
Applying big data to ancient documents is a fascinating technique. But it is a hunt for certainty that is destined to be elusive, even if one assumes that past meaning should control present understanding.
Originalism as self-refuting
Did the framers of the Constitution or its amendments intend for its meaning to be fixed at that point in time, as they understood it? They certainly didn’t say so. Even more important, they intentionally used broad language that they understood would be interpreted for years to come.
“We must never forget that it is a Constitution we are expounding … a Constitution intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs,” Chief Justice John Marshall wrote in 1819 in McCulloch v. Maryland, upholding the establishment of a national bank even though that was not among the express powers the Constitution granted to Congress.
More than a century later, Justice Felix Frankfurter, a noted advocate of judicial restraint, explained that the framers understood when to be specific and when to be vague. “This was not due to chance or ineptitude on the part of the Framers,” he wrote. “Great concepts like ‘Commerce among the several States,’ ‘due process of law,’ ‘liberty,’ ‘property’ were purposely left to gather meaning from experience. For they relate to the whole domain of social and economic fact, and the statesmen who founded this Nation knew too well that only a stagnant society remains unchanged.”
Originalists dispute this point. Scholars such as John O. McGinnis and Michael B. Rappaport have criticized what they call “the abstract meaning fallacy” and have said a closer examination of the language reveals these seemingly broad phrases had a more specific meaning to their authors. “When interpreting the Constitution, we must never forget that it is a legal document we are expounding,” they write, playing off Marshall’s famous statement.
Perhaps it’s possible to narrow down the meaning of certain constitutional language — commerce, for instance. But even assuming it makes sense, the search to pin down original meaning of other phrases, such as unreasonable searches and seizures, seems destined to fail.
A faithful originalist approach would not fixate on the words’ meaning at a particular point in time. The Founders were anything but originalists. Originalism generates its own demise.
Originalism as repugnant
When Scalia described himself as a “fainthearted originalist,” he noted that “in its undiluted form, at least, it is medicine that seems too strong to swallow.” As an example, Scalia cited punishments such as public flogging or branding, which might have been tolerated during the Colonial period. “Even if it could be demonstrated unequivocally that these were not cruel and unusual measures in 1791, and even though no prior Supreme Court decision has specifically disapproved them, I doubt whether any federal judge — even among the many who consider themselves originalists — would sustain them against an Eighth Amendment challenge,” Scalia said.
Good to know, but how are we then to take originalism seriously — especially when faithfully applying it, as Chemerinsky argues, “would lead to abhorrent results?”
One painful challenge for originalists is Brown v. Board of Education, the landmark 1954 school desegregation ruling. Although some originalist scholars maintain that Brown can be justified on originalist grounds, facts get in the way: The same Congress that proposed the 14th Amendment in June 1866 went on the following month to establish separate schools for Black people in the District of Columbia.
“Adherence to originalism arguably requires, for example, the dismantling of the administrative state, the invalidation of paper money, and the reversal of Brown v. Board of Education,” Barrett wrote in a 2016 University of Pennsylvania law review article. (She testified in her 2020 confirmation hearings that Brown and other cases were such “super-precedents” that it was impossible to imagine them being overruled.)
Brown was decided by a court that was explicitly non-originalist. Instead, Chief Justice Earl Warren wrote for a unanimous court, “In approaching this problem, we cannot turn the clock back to 1868, when the Amendment was adopted, or even to 1896, when Plessy v. Ferguson was written. We must consider public education in the light of its full development and its present place in American life throughout the Nation. Only in this way can it be determined if segregation in public schools deprives these plaintiffs of the equal protection of the laws.”
And Brown isn’t the only case that poses difficulties for originalists. Those who ratified the 14th Amendment did not imagine that its guarantee of equal protection of the laws protected marriage between Black and White people. Are originalists prepared to overrule the court’s 1967 ruling in Loving v. Virginia declaring anti-miscegenation laws unconstitutional? Originalists have come up with arguments to justify the results in Brown, Loving and even Obergefell v. Hodges, declaring a constitutional right to same-sex marriage. But it takes no small bit of originalist contortionism to get there. As much as that might make originalists feel better, perhaps a doctrine that requires so much work to arrive at an acceptable result has inherent problems.
Originalism as convenience
This defect has two aspects: First, the demonstrated willingness of the originalist justices to pick and choose the historical practices and traditions that best support the result they want, narrowing or expanding the relevant period as is most helpful to their cause; second, their tendency to abandon originalist arguments entirely when they turn out to be inconvenient.
The first tendency was on dramatic display in two of the landmark cases last term, the New York gun case, Bruen, and the Dobbs abortion ruling. In Dobbs, the majority reached back to the 13th century to find that the Constitution contained no protection for the right to abortion — even though, in the gun case decided just the day before, it declared that “historical evidence that long predates [ratification] may not illuminate the scope of the right” at issue.
Similarly, the majority announced in the gun case that “post-ratification adoption or acceptance of laws that are inconsistent with the original meaning of the constitutional text obviously cannot overcome or alter that text.” Then, in Dobbs, it eagerly cited the numerous state laws restricting abortion that were passed shortly after the 14th Amendment was ratified.
“Had the pre-Roe liberalization of abortion laws occurred more quickly and more widely in the 20th century, the majority would say (once again) that only the ratifiers’ views are germane,” the Dobbs dissenters said, and it is hard to argue with their cynicism.
Meanwhile, when originalist arguments are hard to refute, the conservative justices seem content to ignore them. Take the affirmative action cases which the court recently heard oral arguments. It took liberal Justice Elena Kagan, almost 2½ hours into the argument, to raise the issue.
“One notable thing about the argument here is that on both sides there’s been very little discussion of what originalism suggests about this question,” she observed. “And so I just want to ask, what would a committed originalist think about the kind of race-consciousness that’s at issue here?”
Somehow, the committed originalists seemed less interested in hearing the answer.
If originalism is bunk, what is to take its place?
This is the hardest question of all, and liberals have had difficulty coalescing around an easily understandable and convincing counterpoint. “The question whether originalism is the right theory or best theory cannot be answered in a vacuum,” University of Virginia law professor Lawrence B. Solum wrote in “Constitutional Originalism: A Debate,” a 2011 book. “At some point, the opponents of originalism must answer the question, What is the alternative?” As Scalia put it, “the central practical defect of non-originalism is fundamental and irreparable: the impossibility of achieving any consensus on what, precisely, is to replace original meaning, once that is abandoned.”
Brennan’s 1985 speech laid out a different approach, what has come to be known as living constitutionalism. Where originalists believe that the meaning of the Constitution is fixed at the time it was written and discernible in the present, living constitutionalists insist that the meaning of the document can evolve in response to changing societal perceptions and demands.
“We look to the history of the time of framing and to the intervening history of interpretation,” Brennan said. “But the ultimate question must be, what do the words of the text mean in our time? For the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs.”
There are competing current strands of living constitutionalism. None of them offer the satisfying simplicity of originalism, and none do a particularly good job at countering originalism’s promise of restraining judges from simply adopting the results they prefer."
The liberal justices took a stab at it in the Dobbs dissent. “The Constitution does not freeze for all time the original view of what those rights guarantee, or how they apply,” they wrote. “That does not mean anything goes.”
Rather, they said “applications of liberty and equality can evolve while remaining grounded in constitutional principles, constitutional history, and constitutional precedents.” The meaning of the Constitution, they added, “gains content from the long sweep of our history and from successive judicial precedents — each looking to the last and each seeking to apply the Constitution’s most fundamental commitments to new conditions.”
This approach doesn’t have the seeming precision of originalism, and Alito, in the majority opinion, seized gleefully on that failing. “This vague formulation,” he wrote, “imposes no clear restraints on what Justice [Byron] White called the ‘exercise of raw judicial power.’ ” Alito’s argument would be more convincing if originalism itself imposed the kind of restraints on conservatives that he pretends it does — or if it were clear that the framers meant for the document’s meaning to be fixed in time.
Kagan is often quoted, misleadingly, as saying, at her 2010 confirmation hearings, “we’re all originalists now.” This is convenient for conservatives but inaccurate. “Sometimes they laid down very specific rules,” Kagan said of those who wrote the Constitution. “Sometimes they laid down broad principles. Either way, we apply what they say, what they meant to do. So in that sense, we are all originalists.” Kagan wasn’t so much pledging fealty to originalism as redefining it.
In recent public comments, Kagan has elaborated on this point, noting the distinction between a constitutional provision that says you must be 35 to be president and one that promises “due process” or “equal protection.” “They knew that they were writing for the ages,” she said in an appearance at Northwestern’s law school. “They wrote in broad terms, they wrote in what you might even call vague terms … They didn’t list specific practices. They used those ... generalities for a reason because they knew the country would change … and that you had to apply these principles to circumstances that they couldn’t imagine.”
Responsible judges examine the words of the text and their contemporaneous meaning. They study history and tradition. They look to precedents and seek to apply them to new situations. But in the end, judging inevitably involves judgment — one hopes, good-faith judgment based on the individual jurist’s interpretation of the values embedded in the Constitution and the development of those values over time.
Different judges will disagree about what that means in the particular case at issue. They can aspire to the Roberts vision of judges as neutral umpires mechanically calling balls and strikes; in some cases, that standard might even be achievable.
But in some cases, among them the hardest and most contested, it is illusory. Why then would a judge choose to be — why is a judge constrained to be — trapped in the murky amber of 1791 or 1868? Society has progressed since Black people were enslaved and women were chattel, since flintlock muskets gave way to assault weapons and extended capacity magazines, since worries about protecting the homestead yielded to privacy concerns over big data. The Constitution was written with the understanding that it would apply to circumstances not yet forseen, and with language flexible enough to accommodate them.
It is not entirely comfortable for judges to acknowledge that they bring their own experiences and values to bear in deciding a case, but there is also no way around that truth. The danger of originalism, as Berman wrote years ago, is that it is used “to bolster the popular fable that adjudication can be practiced in something close to an objective and mechanical fashion.”
The difference between originalists and non-originalists is that the former pretend otherwise; most likely, they have convinced themselves of it. But conviction, however sincere, does not make a flawed approach legitimate. And the flaws embedded in originalism are magnified by its use, or misuse, by conservative justices and judges focused on a desired outcome.
This brand of originalism isn’t just bunk — it’s rigged, dishonest bunk. The more forcefully liberal lawyers and justices push back on it — the faster they make their way out of the originalism trap — the better.