Originalism has featured prominently in each of the last three Supreme Court confirmation battles those of Neil Gorsuch in 2017, Brett Kavanaugh in 2018 and now Amy Coney Barrett. Each time, misconceptions about this theory of constitutional interpretation have swirled: Isnt originalism self-defeating because the Founders werent originalist? Dont originalists ignore the amendments written after 1789? Do originalists think the Constitution applies only to horse-drawn carriages and muskets?
As a constitutional law professor, the author of A Debt Against the Living: An Introduction to Originalism, and an originalist, Id like to answer some frequently asked questions about originalism and to debunk some of the myths.
Originalism is the idea that we should interpret the Constitution with its original meaning. But what, exactly, is the Constitutions original meaning?
Some originalists argue its the meaning as understood by those who ratified the Constitution in the various state conventions, or the public that elected those ratifiers. Others say its 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.
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, youd 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 youd 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 doesnt meet modern tastes. In that case we can amend the recipe or perhaps abandon it. But doing so doesnt 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.
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.
Despite popular belief, there is no difference between the two. Originalists interpret the Constitution with its original meaning; textualists interpret statutes with their original meanings. Same method, different texts.
Both originalists and textualists argue that the secret intent of the Founding Fathers, or the legislative intent of statutory drafters, cannot override the texts clear meaning. The Founders and drafters intent, however, is evidence of what they likely meant by what they wrote.
For that reason, originalists like to look to James Madisons notes from the Constitutional Convention. In principle, textualists can look to legislative history like committee reports for the same reason. But textualists are wary of relying on legislative history because doing so is unreliable. There can be so many varying and competing statements in a statutes legislative history that relying on legislative history is, in the words of Judge Harold Levanthal, kind of like going to a cocktail party, looking over the crowd, and picking out just your friends.
Of course. Thats why the First Amendments protection for freedom of speech applies to the internet. Its why the Fourth Amendments prohibition on unreasonable searches and seizures applies to GPS devices that police officers put on cars. And, yes, its why the Second Amendment applies to more than just muskets. In other words, originalists are not bound by the original expected applications of the Constitutions text. Theyre 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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Justice Elena Kagan, appointed by President Obama in 2010, famously announced at her confirmation hearing that were all originalists now. She meant that all justices take the text of the Constitution more seriously than they used to. Only three justices, however Clarence Thomas, Neil Gorsuch and Brett Kavanaugh are self-avowed originalists. Justice Samuel Alito and Chief Justice John Roberts both take a more pragmatic approach, giving more weight to precedents and consequences. Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor believe the Constitution can and should evolve over time.
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 wasnt added until 1791. Originalists are bound by changes to the Constitution that have been properly made through the amendment process.
This is also why originalism can and does justify Brown v. Board of Education, the landmark school desegregation decision. The 14th Amendments 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.
That brings us to the final misconception: Isnt 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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What is originalism? Debunking the myths - The Conversation US