In her 2010 confirmation hearing, Justice Elena Kagan famously quipped that “we are all originalists” while affirming her close adherence to constitutional text and structure. Judges, said Kagan, ought to take seriously and apply “what they [the framers] say, what they meant to do.” And this week, quite remarkably, President Biden’s Supreme Court nominee, Judge Ketanji Brown Jackson, told senators that her judicial philosophy centered on adhering to the text of the Constitution at the “time of the founding and what the meaning was then,” looking for the “original public meaning,” and trying to determine what the text “meant to those who drafted it.” Jackson’s statements were immediately heralded by liberal and conservative legal commentators alike as a victory for originalism and a compelling example of its dominance as the leading theory of constitutional interpretation in the United States.
But if this is a victory for originalism, it is a Pyrrhic victory of epic proportions. If and when most judicial nominees, liberal and conservative, Democratic and Republican, assent to some form of originalism, it will come at a steep price for originalists: Their method will be shown to do nothing at all, save, perhaps, providing a jargon in which to rationalize decisions reached on other grounds. It will become clear — even as the justices resolutely deny it — that all the real work, in hard cases of constitutional interpretation, is done by implicit or explicit commitments of political morality. Moreover, the Pyrrhic victory for originalism will be a defeat for the nation at large, diminishing transparency about the real grounds of judicial decisions and exacerbating cynicism about constitutional law.
Originalism’s early proponents — including Edwin Meese III, Judge Robert Bork and Justice Antonin Scalia — fought for it under the banner of curbing judicial discretion and promoting goods like the rule of law, democracy and popular sovereignty. Originalism promised to do all this by ensuring judges could not de facto amend the Constitution by changing the meaning of text through interpretation; its meaning would not change with every personnel shift on the court. Instead, judges were to find the original meaning fixed at the time the constitutional text was ratified and apply it to current legal disputes, and not rely on considerations of morality to aid their interpretation. In a famous 1989 law-review article, Scalia argued that originalism’s main virtue was that it helped judges avoid the “main danger in judicial interpretation of the Constitution” — that is, mistaking “their own predilections for the law.”
Originalists have been notably scathing about the Warren court’s identification of a “right to privacy,” for example — supposedly implied by other constitutional provisions — which led, first, to the striking down of a state ban on contraception and, later, to the rejection of laws banning abortion. This, they said, was a classic case of the imposition of modern “predilections” onto a text that was silent on these questions.
This brand of originalism suffered years of scathing critique, mostly from liberals, who argued that the methodology failed to live up to its promise of neutrality — and moreover that there was no reason to think this aspiration was possible in any event. The scholar Ronald Dworkin, for example, argued that originalists could not escape drawing on political morality whenever the language in constitutional text is unclear, ambiguous or capable of being read at different levels of generality (which is often). Insisting that the meaning of, say, the 14th Amendment’s “equal protection of the laws” has been fixed at a historical point in time merely poses, rather than answers, the crucial question of how best to faithfully interpret that meaning. Do we apply provisions to a contemporary dispute exactly as people at the time would have applied those provisions, or do we instead focus on respecting the broad principles they adopted, applying those principles in light of our current circumstances? If we do rely on broad principles, how do we apply them to changing circumstances without stretching them so far we end up replacing them?
When making such choices, there is simply no escape from moral and political argument; professing loyalty to original meaning begs the critical questions. Bork, for instance, claimed to have found an originalist justification for Brown v. Board of Education: The 14th Amendment, he argued, enshrined the principle of “no-state-enforced discrimination.” By contrast, many conservatives in 1953 insisted, plausibly enough, that most ratifiers of the amendment would not have thought it banned school segregation, in particular. The choice between these different levels of abstraction requires moral argument.
This is precisely why supposedly originalist justices, in hard cases, constantly appeal to contemporary views of justice to fix the meaning of vague, general or ambiguous texts. For example, in recent years, conservative justices have appealed to largely ahistorical libertarian ideals and concerns when interpreting the scope of the First Amendment’s guarantee of freedom of speech, the extent of Congress’s ability to delegate rulemaking authority to the executive branch and the level of control the president must have over removing federal officials from office.
That flexibility helps to explain how even some progressive, and libertarian, scholars have come to embrace originalism — which was once associated with cultural conservatives. Yale’s Jack Balkin, for example — a much-cited scholar who advocates “living originalism” — reads constitutional texts at a sufficiently high level of generality to encompass abortion rights. And Northwestern’s Steven Calabresi, a founding member of the Federalist Society, reads constitutional texts at a sufficiently high level of generality to encompass same-sex marriage. Both scholars deny that they are authorizing judges to change the constitutional meaning. Rather, they claim to offer entirely faithful arguments about what the original meaning has always been; the fixed meaning, they argue, has always embodied abstract principles that permit legal outcomes congenial to contemporary morality. But all this makes risible the frequently heard originalist claim that the method promotes the stability and durability of constitutional meaning over time.
Against this backdrop, Jackson’s comments this past week are best read as the self-defeating triumph of a vacuous form of originalism. Lawyers of any and all substantive views can agree with its core slogans, it seems, but those slogans are banalities that offer no guidance about how to make the moral choices that inevitably arise in hard cases. When every judicial nominee calls herself an originalist, the method cuts no ice. If everything is originalism, nothing is.
More broadly, this Pyrrhic victory is an outright defeat for society at large. Widespread embrace of a contentless originalism distorts and obfuscates how Supreme Court decision-making works. If justices of all ideological stripes insist that they are engaged in a purely neutral and technical exercise, consulting the Federalist Papers, ratification debates and aged dictionaries, when they are in fact drawing on considerations of political morality, the real grounds of decision in hard cases are papered over. This pretense of amoral technique detracts from public oversight if the public is fooled, and risks widespread cynicism if the public isn’t fooled.
To be sure, candor about the moral grounds of decision in hard cases is merely the prelude to difficult substantive arguments about what principles of political morality the Constitution embodies. Views that put liberty and individual autonomy front and center are only one possibility. Elsewhere, we have laid out a different approach, based on the classical legal tradition — rooted in commitment to human flourishing and “the common good.” Judges will always disagree, to some extent, about how the Constitution can best be read as a morally attractive document — but these are the grounds on which the debates should proceed.
In contrast, the present widespread embrace of originalism — by judges of every ideology — is a kind of systemic falsehood, and falsehoods are no foundation on which to anchor the most sensitive and far-reaching questions of legal interpretation in a political community. The pseudo-victory of originalism, on display at this week’s hearings, is society’s genuine loss.