Originalism sells itself as a way of constraining judges. But it’s more often a way of unleashing them.
Judge Amy Coney Barrett’s Supreme Court confirmation hearings begin on Monday, and it’s a safe bet that we’ll hear one word over and over again over the next few days: “originalism.” Barrett is a self-proclaimed originalist, embracing a theory of the Constitution that is also shared by at least two other sitting justices: Justices Clarence Thomas and Neil Gorsuch.
Originalism, in Barrett’s words, is the belief that “constitutional text means what it did at the time it was ratified and that this original public meaning is authoritative.” Judges, originalists maintain, should be bound by the words of the Constitution, and the meaning of those words should be determined solely based on how they were understood when they were added to the Constitution.
One of the primary appeals of originalism is that it purports to constrain judges by requiring them to follow a written text even when they dislike the outcomes that text commands. “The main danger in judicial interpretation of the Constitution,” the late Justice Antonin Scalia said in a 1988 lecture explaining why he is an originalist, “is that the judges will mistake their own predilections for the law.”
At least in theory, originalism prevents judges from making this mistake by lashing them to the unchanging meaning of a written document. And, at least on the surface, its core insight that judges are bound by the Constitution’s words seems obvious: Of course judges should obey the text of the Constitution!
In reality, however, following the text of the Constitution is more complicated than it sounds.
For one thing, the Constitution is riddled with ambiguous language. What are the “privileges or immunities of citizens of the United States?” What makes a search or seizure “unreasonable?” If the government wants to deny “liberty,” how much “process” is “due?” What’s a “public use” of private property? What is the “general welfare of the United States?”
The meaning of much of the Constitution is vague and uncertain, and it was vague and uncertain when it was drafted. There are limits to what a judge can learn about constitutional meaning by combing through historical documents, or by reading 18th-century dictionaries.
Barrett herself seems to acknowledge this problem. “For an originalist,” Barrett wrote in 2017, “the meaning of the text is fixed so long as it is discoverable.”
Then there’s the problem of precedent. What should an originalist judge do if they are convinced that a longstanding practice — perhaps one that the Supreme Court itself declared constitutional in a prior opinion — violates the original understanding of our founding document?
To give one rather stark example, there was a robust debate among early Americans about whether it is constitutional for the federal government to fund “internal improvements” such as roads and canals. As president, James Madison even vetoed an 1817 bill funding such construction because he deemed it unconstitutional.
Madison’s views are now widely rejected. But suppose that a Supreme Court dominated by originalists concludes that Madison was correct. Does that mean that the entire federal highway system must be torn up?
Barrett has wrestled at length with the problem of precedent in her scholarship. “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 acknowledges in a 2016 article co-authored with scholar John Copeland Nagle. She also states in that piece that there are some past decisions that “no serious person would propose to undo even if they are wrong,” so Barrett appears to recognize that it would be irresponsible for an originalist judge to overrule every precedent they believe was wrongly decided.
In a 2017 essay, Barrett suggests several tactics that an originalist Supreme Court could use to avoid triggering chaos. Because the Court’s “discretionary jurisdiction generally permits it to choose which questions it wants to answer,” for example, Barrett suggests that the Court can simply agree not to hear cases seeking to legalize public school segregation. Or seeking to declare the dollar unconstitutional.
But there is much at stake if an originalist Supreme Court is not willing to stay its hand in the ways Judge Barrett suggests. To give one more example, Justice Clarence Thomas has argued, on originalist grounds, that his Court should consider reinstating long-dead doctrines that were once used to declare federal child labor laws unconstitutional. Thomas, at the very least, seems unlikely to restrain himself simply because most Americans won’t like the outcome of a particular case.
As it turns out, originalism potentially gives judges — or, at least, Supreme Court justices — tremendous discretion to decide whether to upend foundational legal principles that few Americans would care to see unsettled.
That might be the entire point.
Three waves of originalism
Today, originalism is typically associated with political conservatives. Conservative scholars such as Robert Bork embraced originalism as a way to attack the liberal Warren Court’s decisions in the early 1970s. Justice Scalia, a conservative icon, spent several decades as originalism’s most vocal evangelist. On the current Court, the originalist banner is carried by conservative Justices Thomas and Gorsuch. And these two men are likely to be joined on the Supreme Court by the originalist conservative Amy Coney Barrett.
And yet, for much of the 20th century, the most vocal proponent of the kinds of textual and historical arguments favored by modern-day originalists was Justice Hugo Black, a liberal Franklin Roosevelt appointee. (There are subtle methodological differences among these different waves of originalism. Black, for example, tended to speak about the Constitution’s “original purpose,” while modern originalists speak more of its “original public meaning.”)
In the last century, there have been three great waves of originalism. The first, spearheaded by Black, sought to tear down prior efforts by conservative judges to thwart progressive legislation. The second, led by men like Scalia, was primarily a backlash against decisions like Roe v. Wade (1973) — decisions beloved by liberals and hated by conservatives.
The third wave, meanwhile, also has its roots in legal conservatism, but it is quite distinct from the restrained vision of judging advocated by Justice Scalia (or, at least, advocated by Scalia in the 1980s). Led by men like Thomas and Gorsuch, third-wave originalists are quite comfortable with judicial power. And they are eager to use it to drastically reshape the law.
Justice Hugo Black and first-wave originalism
Justice Black was one of the least likely champions of civil rights in American history.
A former US senator from Alabama, Black joined the Ku Klux Klan in 1923, and the Grand Dragon of the Alabama Klan played a major role in Black’s first campaign for the Senate. Black won his widest margins in that race in the parts of Alabama with the highest Klan membership.
Yet Black abandoned much of his racist past on the Supreme Court; he joined the Court’s decision in Brown. And Roosevelt, who was famously indifferent regarding questions of race, did not appoint Black in 1937 because he hoped that the former Alabama senator would advance a particular racial agenda. FDR’s goal was to make sure that the Supreme Court would not sabotage the New Deal.
Beginning in the late 19th century, the Supreme Court handed down a series of decisions gutting the government’s power to regulate the economy, and especially the workplace. In addition to its decision striking down federal child labor laws, the Court struck down minimum wage laws, stripped workers of their right to unionize, and struck down a law prohibiting bakery owners from overworking their employees.
This age is often referred to as the “Lochner era,” after the Supreme Court’s decision in Lochner v. New York (1905) — a decision that is now viewed as “discredited” even by conservative justices such as Thomas and Chief Justice John Roberts.
Many of these Lochner-era cases rested on a tendentious argument: The 14th Amendment mandates that no state may deny a person of “liberty” without “due process of law,” which establishes a “freedom of contract.” And this “freedom” supposedly prevents the government from regulating many exploitive labor contracts.
During Roosevelt’s first term, moreover, conservatives on the Supreme Court frequently blocked legislation Roosevelt had signed to lift the country out of the Great Depression.
Justice Black was quite open about the fact that Roosevelt placed him on the Court to help restore the government’s power to regulate the economy. “That’s why I came on the Court,” Black said in 1967. “I was against using due process to force the views of judges on the country. I still am. I wouldn’t trust judges with that kind of power and the Founders did not trust them either.”
But Black was not a monolithic proponent of judicial restraint. To the contrary, he could be quite aggressive when he believed that the Constitution’s text and its history called for such aggression. Indeed, it’s likely that Hugo Black did more to expand the scope of the Bill of Rights than any judge in American history.
Before Black joined the Court, most of the Bill of Rights was understood to apply only to the federal government. States were free to violate most of these rights. One of Black’s primary projects on the Supreme Court — a project that was largely successful — was to make the entire Bill of Rights applicable to the states. And he justified this project on originalist grounds.
“I would follow what I believe was the original purpose of the Fourteenth Amendment,” Justice Black wrote in his dissenting opinion in Adamson v. California (1947). That “original purpose,” according to Black, was “to extend to all the people of the nation the complete protection of the Bill of Rights.”
For Black, preventing the Court from reading unwritten new rights into the Constitution, and ensuring that the rights explicitly laid out in the Bill of Rights were robustly enforced, were the same project. “To hold that this Court can determine what, if any, provisions of the Bill of Rights will be enforced, and if so to what degree, is to frustrate the great design of a written Constitution,” Black wrote in Adamson.
The text of the Constitution, and the “original purpose” of that text, must constrain judges. Removing that constraint risks Lochnerism. And Black would insist on such constraints even when confronted with laws he found odious.
In Griswold v. Connecticut (1965), for example, the Court struck down a state law preventing married couples from using contraception, holding that the Constitution protects a “right to privacy” for such couples that is not explicitly mentioned in the founding document’s text.
Black’s Griswold dissent showed no love for Connecticut’s anti-contraceptive law. “The law is every bit as offensive to me as it is to my Brethren of the majority,” Black wrote in that dissenting opinion. But the fact that he found the law offensive was not enough to override the Constitution’s text.
“The Court talks about a constitutional ‘right of privacy’ as though there is some constitutional provision or provisions forbidding any law ever to be passed which might abridge the ‘privacy’ of individuals,” Black chided his colleagues. “But there is not.”
Judge Robert Bork, Justice Antonin Scalia, and second-wave originalism
The second wave of originalists differed from Black in that they were largely political conservatives. Yet they shared many of Black’s critiques of decisions reading unenumerated rights into the Constitution. Indeed, second-wave originalists often presented themselves as champions of democracy, protecting the power of elected legislatures to make policy that unelected judges might find objectionable.
“A Court that makes rather than implements value choices” made by elected officials “cannot be squared with the presuppositions of a democratic society,” future judge and failed Supreme Court nominee Robert Bork wrote in an influential 1971 law review article.
For Bork, the liberal Warren Court — which moved the law significantly to the left during the 1950s and 1960s — had committed the same sin committed by conservatives in the Lochner era. It had substituted its own values for the will of the people.
The man who understands the issues and nevertheless insists upon the rightness of the Warren Court’s performance ought also, if he is candid, to admit that he is prepared to sacrifice democratic process to his own moral views. He claims for the Supreme Court an institutionalized role as perpetrator of limited coups d’etat.
As evidence for this dramatic claim, Bork cited the same case Justice Black railed against late in life: Griswold v. Connecticut.
The problem with Griswold, Bork wrote, is that the Constitution itself provides no guidance on when judges should apply a right to privacy. And, “where the Constitution does not embody the moral or ethical choice, the judge has no basis other than his own values upon which to set aside the community judgment embodied in the statute.”
Bork, like Black, was calling for constraints on judges — and he wanted to find those constraints in the Constitution’s text.
Scalia’s case for originalism was similar to Bork’s, though Scalia more often cited the Court’s abortion decision in Roe v. Wade (1973) as an exemplar of how judges should never behave. (Just as decisions like Lochner grounded a “freedom of contract” in the Constitution’s vaguely worded due-process clause, Roe grounded a right to privacy in that same vague clause, and then determined that this right to privacy extends to abortion.)
Like Bork, Scalia emphasized that the problem with decisions like Roe wasn’t that he disagreed with the policy judgment underlying them (although there’s little doubt that Scalia personally opposed abortion). Rather, Scalia presented himself as the defender of democracy. “Whether you think prohibiting abortion is good or whether you think prohibiting abortion is bad,” Scalia said in a 2012 interview, “regardless of how you come out on that, my only point is the Constitution does not say anything about it.”
Rather, Scalia argued, the Constitution leaves questions about abortion “up to democratic choice.” The role of judges was to get out of the way of elected lawmakers.
As Keith Whittington, an influential scholar of originalism at Princeton University, wrote in 2004, the brand of originalism Scalia touted for most of his career “was a reactive theory motivated by substantive disagreement with the recent and then-current actions of the Warren and Burger Courts.” Second-wave originalism developed as “a way of explaining what the Court had done wrong, and what it had done wrong in this context was primarily to strike down government actions in the name of individual rights.”
Originalism or, at least, second-wave originalism, presented itself as a way to reduce the role of courts in public life and restore power to the people’s democratically elected representatives.
Justice Clarence Thomas, Justice Neil Gorsuch, and third-wave originalism
Men like Scalia and Bork came of age during an era when liberals dominated the judiciary, and they rose to power during a period of transition, when it was not yet clear that conservatives would gain total control of the Supreme Court.
So it makes sense that second-wave originalism would emphasize judicial restraint. Originalists writing in the 1970s and 1980s could not know if the Court would become more conservative in the coming decades, or if the Court would take another hard left turn. If they called for the judiciary to exercise too much power, second wave originalists might have been very upset about how that power was used by future justices.
Someone like Justice Gorsuch, by contrast, did not rise to power during an age of uncertainty. Gorsuch graduated from law school the same year that Justice Thomas replaced liberal Justice Thurgood Marshall — cementing a conservative majority on the Supreme Court. And Gorsuch has spent his entire professional career watching the Court move rightward.
While Scalia experienced the pain of watching the Court hand down decisions like Roe v. Wade, Gorsuch’s generation of conservative lawyers didn’t need to fear that the conservative Rehnquist and Roberts Courts would implement a broad liberal policy agenda from the bench. Conservatives of Gorsuch’s generation were most often upset by the Supreme Court when it showed judicial restraint — such as when the Court upheld most of Obamacare.
As Whittington writes, “if originalism in its modern form arose as a response to the perceived abuses of the Warren and Burger Courts, then the advent of the [conservative] Rehnquist Court made it largely irrelevant.” The third wave of originalism (or, what Whittington labels the “new originalism”) “is less likely to emphasize a primary commitment to judicial restraint.” Third-wave originalists are not defined by a “fear of judicial freedom,” and their rhetoric shows a “loosening of the connection between originalism and judicial deference.”
Third-wave originalists, in other words, are far more likely to call for democratically enacted laws to be struck down than their counterparts in the 1970s and 1980s.
The pioneering figure leading this third wave is Justice Clarence Thomas. Thomas is, in many ways, the anti-Hugo Black. While Black’s opinions wielded the Constitution’s text and its original history as tools to make way for the New Deal (and later the Great Society), Thomas wants to tear down the robust federal government that men like Black embraced.
Concurring in United States v. Lopez (1995), Justice Thomas argued, on originalist grounds, that the Constitution’s provision allowing Congress to regulate interstate commerce does not permit it to enact laws concerning “productive activities such as manufacturing and agriculture.” This is the exact same argument that the Court once used to strike down federal child labor laws. If taken seriously by the Supreme Court, Thomas’s view would endanger a wide range of New Deal and post-New Deal reforms, from a nationwide minimum wage to protections for unionized workers.
Similarly, in Department of Transportation v. Association of American Railroads (2015), Thomas argued that federal agencies such as the Department of Labor or the Environmental Protection Agency should be entirely stripped of their power to issue binding regulations — arguing on originalist grounds that these agencies may not “create generally applicable rules of private conduct.”
If this view was ever taken seriously by the Supreme Court, it would be virtually impossible for the United States to take effective steps to protect the environment. Key provisions of the Clean Air Act and the Clean Water Act would simply cease to exist.
Thomas’s version of originalism, in other words, sees much of the last century of American law as illegitimate.
The common theme underlying all three waves is that originalism is a reactionary doctrine. I mean this not in the pejorative sense of the word “reactionary,” but rather in the literal sense that originalism thrives in reaction to legal developments that particular originalists find objectionable. Originalists can be liberal (like Black), conservative (like Scalia), or something approaching nihilistic (like Thomas). But all three waves of originalism share a desire to wipe away something that came before.
Courts typically operate according to a principle known as “stare decisis” — Latin for “to stand by things decided.” It is typically not viewed as legitimate for a judge to simply declare “I will not follow this earlier decision because I disagree with it.” A judge who wants to overrule a prior precedent must offer a compelling justification for doing so.
But originalism proposes an alternative source of judicial legitimacy. Rather than being fenced in by their predecessors’ decisions, an originalist justice who overrules a longstanding precedent can claim the legitimacy that flows from the Constitution’s text and its early history.
So how much does originalism constrain judges, anyway?
The strongest argument for originalism is Scalia’s argument for it, that it will help prevent judges from mistaking “their own predilections for the law.”
Lawrence Solum is a University of Virginia law professor and a prominent originalist scholar. He told me over email that his personal politics are “progressive on most of the big questions.” But he nonetheless argued that liberals should hope that Republican presidents choose originalists like Judge Barrett over non-originalist conservatives.
“When we ask about the implications of appointing an originalist Justice,” Solum wrote to me, “it is important to think about the real-world alternative.” That alternative, at least so long as someone like Trump is picking judges, “is not a progressive living constitutionalist (in the short run), it is a conservative living constitutionalist” (the term “living constitution” was popular among 20th-century liberals who believed that the meaning of the Constitution must evolve over time).
Solum’s argument is that, if Trump does not appoint an originalist, he’s likely to appoint someone just as conservative — but without a judicial philosophy that seeks to constrain judicial discretion. Between those two unpleasant options, liberals should prefer a conservative justice who can be persuaded by text and history to reach decisions that do not align with their partisan preferences.
There’s something to this argument. In Bostock v. Clayton County (2020), Justice Gorsuch — an originalist who fetishizes the text of statutes and constitutions even more than Thomas — wrote a persuasive opinion holding that existing federal workplace discrimination law prohibits discrimination against LGBTQ workers. Prior to Bostock, the conservative Gorsuch had opposed LGBTQ rights in other contexts.
So at least some conservative originalists can, at least some of the time, be convinced to reach liberal outcomes when presented with an unusually strong textualist argument.
But even if we concede the point that an originalist conservative like Gorsuch is preferable to a predominantly partisan justice in the vein, of, say, Justice Samuel Alito, a question remains: just how much does originalism constrain justices who adhere to it?
In his 1999 book Constitutional Interpretation, Whittington, the Princeton professor, drew a distinction between constitutional “interpretation,” which he defined as the “process of discovering the meaning of the constitutional text,” and constitutional “construction,” which “cannot claim to merely discover a preexisting, if deeply hidden, meaning within the founding document.”
Many originalist scholars concede that at least some parts of the Constitution are trapped in the “construction zone,” meaning that there is no way to pin down a single interpretive meaning of these provisions using the originalist tool chest. So judges will have to rely on something else when asked to construe constitutional provisions with uncertain meanings.
There are many possible ways to decide cases that fall within the construction zone. As Whittington told me in an email, some scholars “argue that the courts ought to adopt default rules that effectively dictate how such matters ought to be resolved, such as ‘when in doubt, defer to the legislature.’” Other originalist scholars, Whittington adds, “argue that judges operating within the construction zone should be making use of the same kinds of jurisprudential tools that non-originalist judges would routinely endorse and use, like arguments based on precedent, constitutional structure, constitutional traditions, etc.”
But the mere fact that a debate exists among originalists about how judges should approach constitutional provisions with indeterminate meaning suggests that judges will have to exercise at least some individual discretion — they have to choose which method they will use to make sense of the Constitution when originalism fails to supply a clear answer.
And the difference between a judge who defers to elected lawmakers in all cases where the Constitution’s meaning is uncertain, and someone like Justice Thomas who appears eager to tear up much of the last century of American constitutional law, is profound.
There is good reason, moreover, to believe that much of the Constitution’s meaning cannot easily be pinned down. The framers themselves had bitter arguments about the document’s meaning, stretching at least as far back as Alexander Hamilton and Thomas Jefferson’s 1791 debate over the constitutionality of a national bank. Many central figures in the Constitution’s framing read it in ways that most modern scholars view as ridiculous — such as James Madison’s argument that the Constitution forbids the federal government from funding roads and canals.
If James Madison could reach a conclusion that is so wildly out of step with the generally accepted understanding of the Constitution, how can we trust someone like Gorsuch or Barrett to discover the document’s one true meaning? Why would we even think that such a meaning exists?
That the Framers themselves were uncertain about constitutional meaning, moreover, throws the debate over how originalists should approach stare decisis into sharp relief.
In his 1988 lecture explaining his originalist approach, Scalia praised Chief Justice William Howard Taft’s opinion in Myers v. United States (1926), which held that the president may remove executive branch officials without seeking permission from the Senate, as a model of originalist reasoning. Yet, as Scalia acknowledged, one of the most striking things about Myers is just how long it took the Court to reach its decision.
The Court first heard oral arguments in Myers in December of 1923. As Scalia writes, the case was then “set for reargument and heard again the next Term, almost a year-and-a-half later, on April 13th and 14th, 1925.” The Court’s decision in Myers “did not issue until more than a year-and-a-half after this second argument, on October 25, 1926” — nearly three years after the first argument.
Constitutional law is hard. It takes time — lots of time — to conduct rigorous originalist research. It often takes more time than the Supreme Court is willing to spend considering individual cases. The overwhelming majority of cases that the Supreme Court hears are decided in a matter of months, and the Court rarely devotes years to a single case.
That means that even originalist justices who operate in good faith are likely to make mistakes when trying to figure out the Constitution’s original meaning — or worse, they are likely to allow their decisions to be influenced by motivated reasoning.
Justices can’t avoid making value judgments
We are now 232 years from the day the Constitution was ratified. In the more than two centuries that it’s been our highest law, hundreds of thousands — if not millions — of lawyers, judges, and scholars have studied the Constitution’s text and tried to divine its meaning. And yet, after more than 200 years of debate, even originalist scholars and judges still argue about how to understand the Constitution.
Much of the document’s original meaning is still uncertain.
It is inevitable that judges — even originalist judges — will disagree about the Constitution’s original meaning. As Barrett acknowledges in her 2017 essay on originalism and stare decisis, originalist judges will inevitably encounter past precedents that they believe to be wrongly decided. And yet, simply plowing over those decisions without regard to consequences would ignore “the reliance interests of those who have structured their affairs in accordance with the Court’s existing cases.”
In other words, an originalist justice must make value judgments. If they become convinced that the Constitution, as originally understood, does not permit child labor laws — or that paper money is unconstitutional, or that Brown v. Board of Education was wrongly decided — then they must make a personal choice about whether the potentially quite radical consequences of tearing away decades or even centuries of American law are worth the benefits of bringing the Court’s decisions more in line with originalism.
As Solum told me in an email, “originalists need to be upfront about the problems of a transition to originalism.” If the Court “is going to go slowly in areas of law where immediate restoration of original meaning is infeasible or undesirable, it will be difficult to craft objective standards.”
Perhaps that explains why even many of the Supreme Court’s conservatives recognize that originalism has its limits.
“I do think the Constitution means something and that that meaning does not change,” Justice Alito said in a 2014 interview. But that original meaning only goes so far. “Take the Fourth Amendment,” Alito offers as an example. “We have to decide whether something is a reasonable search or seizure,” but “that’s really all the text of the Constitution tells us.”
In many Fourth Amendment cases, Alito acknowledges, the only thing an originalist justice has to work with is a vaguely stated “principle.” To apply that principle to hard cases, “you have to use your judgment.” The original meaning of the Constitution provides few answers to judges hoping to figure out how the Fourth Amendment applies “to things like a GPS that nobody could have dreamed of” when the Constitution was ratified.
And yet, while a Supreme Court with Barrett on it will not have an originalist majority, it will have a very conservative majority. And that means originalism could play a major role in justifying decisions that shift the law dramatically to the right. Originalism provides an alternative source of legitimacy for justices who believe that past decisions were wrongly decided, and who need to offer a compelling justification for overruling those decisions.
Ultimately, the choice of whether to use originalist arguments to wreak havoc over centuries of existing law rests entirely with the justices themselves. And, with a 6-3 Republican Supreme Court, the majority is unlikely to show much restraint.
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Author: Ian Millhiser