By Ilan Wurman
Arizona State University
(THE CONVERSATION) — Recent Supreme Court decisions overturning Roe v. Wade and expanding gun rights in the U.S. have led some legal experts to declare the “triumph of originalism.”
The court’s opinions do, in fact, reflect originalist methodology to an important extent. In New York State Rifle & Pistol Association Inc. v. Bruen, a Second Amendment case, the majority opinion sought “the public understanding of the right to keep and bear arms in both 1791 and 1868.” And in Dobbs v. Jackson Women’s Health Organization, the majority examined whether the right to abortion is “rooted in our Nation’s history and tradition.”
Indeed, of the nine justices on the bench, at least five are now self-avowed “originalists,” with others seemingly sympathetic to the interpretive method. Despite – or perhaps because of – originalism’s rising prominence, misconceptions about this theory of constitutional interpretation have swirled: Isn’t originalism self-defeating because the founders weren’t originalist? Don’t originalists ignore the amendments written after 1789? Do originalists think the Constitution applies only to horse-drawn carriages and muskets?
And, myths aside, are the Bruen and Dobbs opinions truly originalist?
As a constitutional law professor, an originalist and the author of “A Debt Against the Living: An Introduction to Originalism” and “The Second Founding: An Introduction to the Fourteenth Amendment,” I’d like to answer some frequently asked questions about originalism – and to debunk some of the myths.
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What is originalism?
Originalism is the idea that we should interpret the Constitution with its original meaning. But what, exactly, is the Constitution’s “original meaning”?
Some originalists argue it’s the meaning as understood by those who ratified the Constitution in the various state conventions, or the public that elected those ratifiers. Others say it’s the understanding of a reasonable, well-educated reader. Still other scholars claim the Constitution is written in legal language and should be interpreted with its original “legal” meaning. With this approach, for example, the term “ex post facto laws” likely refers only to retroactive criminal laws and not to all retroactive laws.
Although critics of originalism make much of these intraoriginalist squabbles, the reality is all of the above approaches usually lead to the same answer.
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Why originalism?
Originalists believe the Constitution is a public instruction to legal officials, much as statutes are public instructions to citizens and to officials. As such, the Constitution should be interpreted the same way you would interpret any communication intended as a public instruction.
For example, if you found a recipe for apple pie from 1789, you’d interpret it with a public meaning and not with a secret or esoteric meaning that you might use to interpret, say, a Socratic dialogue. Otherwise, the recipe would be an ineffective instruction. And you’d also interpret the recipe with its original meaning, that is, the meaning its creator intended to convey.
That does not, however, mean we should follow the apple pie recipe. Maybe the recipe has some fatal defect or just doesn’t meet modern tastes. In that case we can amend the recipe or perhaps abandon it. But doing so doesn’t change what the recipe actually means.
The Constitution works the same way: As a public instruction, its meaning is its original public meaning. Whether and why the Constitution is legitimate and binding such that we should follow it are separate questions – questions that are deeply contested even among originalists.
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Were the founders originalists?
Some critics claim that originalism is self-defeating because the founders themselves were not originalists. They say originalism is just an invention of the 1970s and 1980s, a reaction to judicial activism of the Warren Court (1953-1969). That is false.
All of the founders were originalists. In 1826, James Madison wrote, “In the exposition of laws, and even of Constitutions, how many important errors may be produced by mere innovations in the use of words and phrases, if not controlled by a recurrence to the original and authentic meaning attached to them!” Chief Justice John Marshall wrote in 1827 “that the intention of the [Constitution] must prevail; that this intention must be collected from its words; that its words are to be understood in that sense in which they are generally used by those for whom the instrument was intended.” Daniel Webster argued in 1840 that the Constitution must be interpreted in its “common and popular sense – in that sense in which the people may be supposed to have understood it when they ratified the Constitution.” And as David P. Currie explained in his monumental study “The Constitution in Congress,” between 1789 and 1861 “just about everybody” in Congress “was an originalist.”
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Does the originalist Constitution apply to modern circumstances?
Of course. That’s why the First Amendment’s protection for freedom of speech applies to the internet. It’s why the Fourth Amendment’s prohibition on unreasonable searches and seizures applies to GPS devices that police officers put on cars. And, yes, it’s why the Second Amendment applies to more than just muskets. In other words, originalists are not bound by the original expected applications of the Constitution’s text. They’re bound by the original meaning of the text, and that meaning can and does apply to new and changing factual circumstances.
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Are all Supreme Court justices originalists?
Justice Elena Kagan, appointed by President Barack Obama in 2010, famously announced at her confirmation hearing that “we’re all originalists now.” She meant that all justices take the text of the Constitution more seriously than they used to. Only four justices, however – Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett – are self-proclaimed originalists. Justice Samuel Alito considers himself a “practical originalist.” He and Chief Justice John Roberts both take a more pragmatic approach, giving more weight to precedents and consequences. Elena Kagan and Sonia Sotomayor believe the Constitution can and should evolve over time. As for the newly appointed Ketanji Brown Jackson, she proclaims to be bound by the original public meaning of the text but adds that the Constitution’s most important provisions are rather open-ended, suggesting that originalism, to her, might sometimes require dynamic interpretation.
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Do originalists ignore Reconstruction? Do they reject Brown v. Board?
A more recent misconception is that originalists ignore all the amendments written after 1789, the year the Constitution went into effect. This is an odd criticism because that would include the Bill of Rights, which wasn’t added until 1791. Originalists are bound by changes to the Constitution that have been properly made through the amendment process, including the 14th Amendment, which was ratified in 1868.
This is also why originalism can and does justify Brown v. Board of Education, the landmark school desegregation decision. The 14th Amendment’s privileges or immunities clause – which provides that no state shall make or enforce any law that abridges the privileges or immunities of U.S. citizens – was an anti-discrimination provision with respect to civil rights under state law. If education is a civil right – and it is – then once it is acknowledged that segregation was never about equality but rather about keeping one race of Americans subordinated to another, segregated public schools obviously violate the Constitution.
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Are Bruen and Dobbs originalist opinions?
The 14th Amendment brings us to the question whether the court’s Bruen and Dobbs opinions are originalist, as has been claimed.
To answer that question, some quick background is in order. Historically, the Bill of Rights bound only the federal government. This might suggest that the Second Amendment should not apply to a case involving a New York state law.
But since the early 20th century, the Supreme Court has “incorporated” the Bill of Rights against the states, such that now almost every right in the Bill of Rights applies equally to both the federal and state governments.
Originalist scholars almost universally believe that “incorporation” was correct as a matter of the 14th Amendment’s privileges or immunities clause. That clause, however, was effectively nullified by the Supreme Court in 1873. Thus today’s Supreme Court “incorporates” the Bill of Rights through the due process clause and more specifically through the concept of “substantive due process” — the idea that some rights are so fundamental that no state should be able to infringe them.
Yet originalists largely agree that the due process clause did not have such a “substantive” component and that states can in fact take away rights so long as they provide sufficient “process.” Other than Justice Thomas, however, the Supreme Court is unwilling to reconsider its incorporation precedents. And until the court does so, technically its opinions applying the Bill of Rights to the states are not fully originalist. Indeed, some scholars even claim that incorporation is inconsistent altogether with originalism.
Dobbs is even harder to square with originalism. Most originalists agree that “substantive due process” is particularly problematic as applied to unwritten rights. Roe v. Wade was such a substantive due process decision: There the court identified a right to abortion nowhere written in the Constitution and held that despite that fact no state could fully prohibit that right. In Dobbs, the Supreme Court overturned Roe, but it did not repudiate substantive due process; it merely limited the doctrine to those written or unwritten rights “deeply rooted in history and tradition.” That is certainly more consistent with originalism, though it is not quite originalism.
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Is originalism just a conservative ploy?
That brings us to the final misconception: Isn’t originalism just a rationalization for conservative results?
The short answer is no. Originalists take the bitter with the sweet. They may not like federal income taxes or the direct election of senators, but they accept the original meaning of the 16th and 17th amendments on those points. Moreover, originalists often believe – whether on abortion or same-sex marriage, for example – that controversial political and moral questions should be decided by the democratic, legislative process, a process that can lead to progressive, libertarian or conservative outcomes.
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