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Originalism

6 min read

Part of The Constitution and the courts.

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Every episode (5)

Who argued it

Evan Bernick · Ilan Wurman · Randy Barnett · Josh Blackman · Gail Heriot

Supreme Court · 14th Amendment · Federalism · Constitutional Law · Commerce Clause · Court Packing

Background

Originalism is a theory of constitutional interpretation. It is defined by two commitments: that the object of interpretation is the meaning conveyed to the ratifying public at the time a provision was enacted, and that judges are bound to follow that original meaning Evan Bernick on the Dobbs Draft (2022). Randy Barnett states the view plainly: the meaning of the Constitution should remain the same until it is properly changed by amendment, not by judges Amy Coney Barrett on Trial (2020).

The originalist/living constitutionalist divide

Bob Zadek frames the debate as a dichotomy between originalism and a “living constitution,” the latter giving judges latitude to interpret what the words mean now even at the cost of original meaning Eight-Dimensional Chess (2020). Barnett describes living constitutionalism as the view that the meaning of a written constitution can and should be updated by judges to reflect changing times and troubles — a judicial updating view rather than one in which judges are subject to a fixed meaning Amy Coney Barrett on Trial (2020).

Josh Blackman offers a historical account of why progressives favored the living constitution: liberals said they could not get what they wanted from history, so they ignored it. He notes a modern trend among progressives to ground arguments in originalism, recognizing a court majority inclined to look to text and history, though he says they have not tried that for abortion or gay rights yet Eight-Dimensional Chess (2020).

The Second Amendment as illustration

Blackman calls the Second Amendment perhaps the greatest example of liberals and conservatives fighting on the same battlefield. In District of Columbia v. Heller (2008), Justice Scalia’s majority found that the Second Amendment protects an individual right to keep and bear arms, while Justice Stevens’s dissent was thoroughly based in history — founding-era statements, the drafting history of the amendment, and statutes passed in the 1800s. Blackman calls the outcome a victory for Scalia and for originalism Eight-Dimensional Chess (2020).

Barnett uses the same amendment as his easier-to-understand example. An originalist would argue the right’s meaning is the same today as when the Second Amendment was ratified and as when the 14th Amendment was ratified in 1868, among whose privileges or immunities was the individual right to keep and bear arms. He adds that opponents who argue the original meaning was a collective right are making an originalist argument too, which he calls wrong but permissible. A living constitutionalist, by contrast, would treat the amendment as at best a starting point or single factor, and might say public safety requires strong restrictions today Amy Coney Barrett on Trial (2020).

Amendment versus judicial reinterpretation

Barnett’s answer to the charge that originalism leaves us bound by the dead hand of the past is that the Constitution is a political document with a mechanical way to change it. He notes it has been changed 27 times, including the 14th Amendment’s creation of federal power to police states and the Progressive Era amendment allowing Congress to tax incomes. He predicts that if the Supreme Court enforced an original meaning that flew against modern opinion, a rapid amendment would follow — and that anyone proposing an amendment wants it read as it was meant to be read Amy Coney Barrett on Trial (2020).

He also argues judges have undone amendments. Five years after the 14th Amendment was enacted, the Slaughterhouse Cases effectively stripped the Privileges or Immunities Clause of meaning, so that lawyers cannot plead it today because of stare decisis. Barnett characterizes that as judges restoring the pre-amendment Constitution because they thought the change too radical — a form of living constitutionalism Amy Coney Barrett on Trial (2020).

Why originalism: the rule of law

Barnett gives two reasons for originalism. The first concerns the rule of law: officials take an oath to adhere to a written constitution, and the Constitution is the law that governs those who govern us. Without it, he says, officials could make up the laws that govern them, like having “living speed limits” instead of a speed limit for everybody. The second is that this particular Constitution is a good constitution — better than what nine justices can provide. Following its original meaning, he argues, would reduce the significance of national elections and of Supreme Court appointments by allocating power to 50 states for 50-state solutions, while the 14th Amendment would still protect individual rights against one’s own state Amy Coney Barrett on Trial (2020).

Dobbs and the charge of incompleteness

Evan Bernick, described as a law professor and an expert on originalism who wrote The Meaning of the 14th Amendment with Barnett, grades the Dobbs draft an incomplete from an originalist perspective Evan Bernick on the Dobbs Draft (2022). He says the draft does not seek to determine the original meaning of “liberty” in the Due Process of Law Clause, of the privileges or immunities of US citizens, or of equal protection; it relies entirely on the Glucksberg test without explaining why that test is grounded in original meaning. He calls the outcome — that abortion is not protected by the 14th Amendment — the generally held position among originalists, citing Jack Balkin’s Abortion and Original Meaning as almost the only major work taking a different view. He rejects the Wall Street Journal’s description of the draft as a triumph of originalism, saying it barely perceives an obligation to be originalist at all Evan Bernick on the Dobbs Draft (2022).

Bernick also describes the draft’s adoption of the rational basis test as the lowest level of constitutional scrutiny, so extreme that a judge must supply a plausible justification even if the government offers none — less a standard of review than an abstention rule. Zadek frames the same outcome as the Court saying that Americans who wish to govern abortion should go to the ballot box rather than the courts Evan Bernick on the Dobbs Draft (2022).

Across episodes

Three episodes touch the topic — Eight-Dimensional Chess (Blackman), Amy Coney Barrett on Trial (Barnett) and Evan Bernick on the Dobbs Draft (Bernick) — and the episodes show no development: the definition of originalism and its contrast with living constitutionalism remain constant, while the later episode shifts the question from what originalism is to whether a particular decision applies it.

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