Originalism’s Charade

The Supreme Court’s decision in June 2022 to overrule Roe v. Wade and erase the constitutional right to abortion was the culmination of a half-century-long campaign by activists, politicians, scholars, lawyers, and judges that began almost as soon as Roe was decided in 1973. That campaign had many components, but at its jurisprudential core was an interpretive method known as originalism. Advanced most influentially by Robert Bork and Antonin Scalia, two law professors turned judges, originalism contends that the Constitution should be interpreted and enforced on the basis of its “original meaning,” namely what it meant when it was adopted. This theory rejects the idea that constitutional norms can evolve through judicial decision-making; the only legitimate way to update constitutional law, its proponents insist, is to amend the Constitution, a process requiring supermajorities in Congress and the states that are virtually impossible to achieve.

When the Court in Dobbs v. Jackson Women’s Health Organization declared Roe “egregiously wrong,” its reasoning rested squarely on originalism. The Court in Roe had held that outlawing abortion infringed the Fourteenth Amendment’s prohibition on “depriv[ing] any person of…liberty…without due process of law.” That couldn’t be right, five justices in Dobbs concluded, because abortion was a crime in most states when the Fourteenth Amendment was adopted in 1868, and there was no evidence that those who drafted or ratified it understood it to invalidate those laws. Since the amendment did not have that meaning then, it cannot have that meaning now.

There is a certain appeal to originalism. At a time when the world seems increasingly complicated, originalism, like other forms of fundamentalism, promises simple answers. At a time when distrust of institutions, including courts, is high, originalism purports to tie judges’ hands. And in a divided nation that no longer seems to have shared values, originalism directs courts to enforce the understandings of a presumably more cohesive past. Originalism accords with how judges interpret contracts, enforcing their terms as they were understood at the time they were agreed to. And any other approach, originalists insist, leaves judges free to impose their own personal views on the rest of us—“legislating from the bench.”

But the simplicity and objectivity that originalism promises are a charade. In Worse Than Nothing, Erwin Chemerinsky, the dean of the University of California, Berkeley, School of Law and one of the nation’s leading constitutional scholars, offers a concise, point-by-point refutation of the theory. He argues that it cannot deliver what it promises—and if it could, no one would want what it is selling. Many eminent scholars and jurists have previously exposed originalism’s flaws, including Ronald Dworkin, Stephen Breyer, John Hart Ely, and Bruce Ackerman, but few have done so as clearly, succinctly, and persuasively as Chemerinsky.

The problems begin with originalism’s principal claim, namely that it constrains judges more meaningfully than other modes of interpretation. Chemerinsky convincingly shows that for multiple reasons, originalism leaves as much room for judgment as other theories of constitutional interpretation.

Originalists must first decide which historical evidence counts, and as every historian knows, that requires a great deal of judgment. Early versions of originalism referred to the “original intent” of the framers, but little evidence of their intent exists. The records of the Constitutional Convention are sparse; we are left largely to rely on James Madison’s notes, but their objectivity has been questioned. As Justice Robert Jackson quipped:

Just what our forefathers did envision, or would have envisioned had they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh.¹

Furthermore, even if we could know precisely what went on behind the closed doors of the Constitutional Convention, the framers did not have authority to bind the nation themselves. The Constitution took effect only upon the votes of the state ratifying conventions, so if any intentions are relevant, it would be theirs. But there is even less evidence available regarding the ratifying conventions. And even if we had verbatim transcripts of each state’s ratifying convention, how does one determine the intent of a collective body—or in this case, of multiple collective bodies? Original intent is a theoretical construct, not a fact in the world.

After years of criticism along these lines, scholars advocating originalism conceded the difficulty with discerning “original intent.” So the revised version of originalism directs judges instead to the “original meaning” of the Constitution, that is, what its words meant to the public when they were adopted. Original meaning is guided by dictionaries of the time, as well as contemporaneous usage and practice. But dictionaries often provide multiple definitions for a given term, legal meanings can differ from ordinary meanings, and contemporaneous practices often varied greatly, even assuming that the Constitution was meant to codify some of them. Thus, Chemerinsky argues, “for most constitutional provisions, there is no ‘original meaning’ to be discovered. Instead, there is a range of possibilities that allows for exactly the judicial discretion that originalism seeks to eliminate.”

Indeed, on many important issues, including the very question of how to interpret it, the Constitution is silent. As Chemerinsky notes, even the Supreme Court’s power to declare acts of Congress or the executive branch unconstitutional is nowhere set forth in it. How can we be guided by the “original meaning” on a subject the Constitution does not even speak to? Originalists often argue that if the Constitution does not expressly provide an individual right, the right does not exist—much as the majority argued in Dobbs. The same would presumably be true of governmental powers, yet originalists do not contend that the Constitution’s silence means the Supreme Court lacks the power to declare acts of the other branches unconstitutional. Many presidential powers, including the power to remove Cabinet officers, to assert executive privilege over working papers, or to rescind treaties, are similarly not addressed by the Constitution’s text and therefore cannot be determined by “original meaning.”

Even when the Constitution contains relevant text, its meaning is often ambiguous. Many books have been written explicating the meaning of “equal protection” and “liberty” in the Fourteenth Amendment; a dictionary from 1868 or a review of contemporaneous laws and practices will generate multiple possible definitions, thus vesting the originalist with plenty of discretion about which to choose.

If one could overcome all of these problems in discerning “original meaning,” one would still have to choose at what level of generality to interpret a constitutional provision. That choice, too, opens up substantial room for discretion. The Constitution gives Congress the power to create an army and a navy. But can Congress create an air force? Only if one reads the references to “army” and “navy” more broadly, as authorizing standing military forces.

More significantly, does the equal protection clause of the Fourteenth Amendment prohibit racial segregation? If one reads the term “equal protection” in light of contemporaneous practices in 1868, one would conclude that segregation was permissible—as seven of eight Supreme Court justices did in Plessy v. Ferguson (1896). To hold that segregation is prohibited, one must read the guarantee of equal protection at a higher level of generality and apply its principle of equality in a way that the ratifying generation would not have. The same is true for whether the clause prohibits sex discrimination. In 1868, women lacked the vote and were excluded from many professions, including the practice of law. And the immediate aim of the amendment was to protect newly freed slaves, not women. It wasn’t until the 1970s, in the midst of the women’s rights movement, that the Supreme Court interpreted it to presumptively prohibit sex discrimination.

This term, the Court is poised to decide the constitutionality of race-based affirmative action in college admissions. Challengers have argued that the equal protection clause requires “color-blindness” and therefore categorically prohibits any consideration of race in admissions. Defenders of affirmative action—which the Court has repeatedly endorsed, at least in circumscribed form, for about fifty years—argue that the Freedmen’s Bureaus created in the aftermath of the Civil War demonstrate that race-conscious action was not deemed a violation of equal protection where it was adopted to aid newly freed slaves or, depending on one’s level of generality, African Americans or disadvantaged groups. Justice Ketanji Brown Jackson made precisely that point at oral argument in a recent Voting Rights Act case.² Yet it is likely that the Court’s conservative (and originalist) justices will declare affirmative action unconstitutional by reading the equal protection clause at an even higher level of generality as a ban on all consideration of race, discounting evidence of its more specific meaning when adopted.

That probable outcome highlights yet another way that originalism fails to constrain its practitioners: they pick and choose when to follow it. Even the most devout originalists are only sometimes originalists. Last term, for example, five justices invoked originalism to overturn Roe v. Wade. But the same five voted in Carson v. Makin to require Maine to fund its citizens’ attendance at private religious schools if it funded their attendance at private secular schools. Chemerinsky writes:

A focus on original meaning would have revealed that from early in American history, many states limited aid to religion, and by 1868 [when the Fourteenth Amendment applied the establishment clause to the states] most states had laws prohibiting direct or indirect aid to religion.

With the original meaning against them, the originalist justices in Carson simply ignored the original understanding and instead justified their result by the non-originalist method of extrapolating from two recent decisions that similarly defied the establishment clause’s original meaning.

Still another way in which originalism fails to constrain judicial discretion is that judges must apply the original meaning, however divined, to modern-day circumstances that the framers could never have envisioned. The Fourth Amendment prohibits unreasonable “searches and seizures,” but is a wiretap a search? Is obtaining someone’s cell phone location records a seizure? Even if the original meaning of the Fourth Amendment were otherwise clear, answers to those questions require reasoning by analogy, asking what the provision’s purpose was, in order to decide whether the Fourth Amendment encompasses government actions that no one could have foreseen.

Perhaps most fatally, originalism fails its own test. There simply is no evidence that the Constitution’s original meaning was that it should be interpreted according to its original meaning. There is substantial reason to believe the contrary. The fact that the framers used general terms, such as “liberty,” “due process,” “equal protection,” and “cruel and unusual punishment,” strongly suggests that they understood they were drafting a charter meant to long outlive them, one that could guide unforeseeable resolutions to unforeseen problems. If you want to bind people to your specific intentions, you write with specificity. The framers chose not a stringent straitjacket but a set of enduring core principles whose meaning and applicability would unfold over time to meet the evolving needs of a growing nation.

To be sure, there are specific provisions in the Constitution with fixed meanings and concrete, limited applications. The requirements that every state have two senators and that every representative must be at least twenty-five years old do not change over time. But no one argues about the meaning of those provisions. The ones that generate dispute and require interpretation are much more open-ended. The commerce clause, for example, gives Congress the power “to regulate commerce…among the several states.” It was initially understood to leave to the states—to the exclusion of Congress—the regulation of business within their respective borders. But since the late 1930s, as it became increasingly evident that we have an integrated national economy in which virtually all commercial transactions have interstate effects, the Court has interpreted the commerce clause to empower Congress to regulate any business matter, no matter how local. Justice Clarence Thomas has expressed doubts about that interpretation, but no other originalist justice has.

Thomas is the Court’s most extreme originalist. Scalia called himself, by contrast, a “faint-hearted originalist” because he was unwilling to accept some of the theory’s most radical consequences. In Dobbs, Thomas wrote separately to argue that the Court should reconsider—on the same originalist grounds it invoked to eliminate the right to abortion—the rights to use contraception, to engage in sexual intimacy with a consenting adult partner, and to marry someone of the same sex. The four justices who joined Thomas in the majority insisted that their decision did not place these other rights in peril, but without explaining how, from an originalist vantage point, they are any different.

Thomas has also advocated abandoning fundamental First Amendment protections for the press and any constitutional rights at all for children, because these rights were not recognized in 1791 or 1868. And he maintains that the establishment clause should apply only to the federal government, leaving states free to fund or even endorse specific religious denominations. The fact that he stands alone on almost all these positions only underscores the illegitimacy of originalism. If a theory cannot be applied consistently without consequences that are untenable even to most of its proponents, it’s an untenable theory. And if those consequences lead its practitioners to abandon the theory on a regular basis, it hardly constrains judicial discretion in a meaningful way.

The case against originalism is, in short, devastating. But what is the alternative? What theory appropriately constrains judicial power if not originalism? It doesn’t help that two of the most common names for competing theories are “non-originalism” and, worse yet, “non-interpretivism,” neither of which trips off the tongue or offers any affirmative sense of what it means. “Living constitutionalism” is not much better; the notion that a document is “living” is counterintuitive at best (even if fundamentally correct). Scalia and other originalists have routinely charged that this failure to spell out with specificity an alternative theory of constitutional interpretation means that judges using these methods are free to impose their own personal value judgments.

But there is a familiar and sensible alternative—familiar because every judge and justice in the history of the United States has employed it most of the time, even the few who profess on occasion to be originalists. This method starts with the text of the Constitution but recognizes that the ways its broad and open-ended provisions apply will be elucidated gradually over time as judges confront particular cases and seek to make sense of what has gone before, analogize from precedent to contemporary circumstances, and explain their reasoning to provide guidance for the future. The University of Chicago law professor David Strauss has called this method “common law constitutional interpretation.”³ It’s what judges at every level have always done when they confront new cases not fully covered by past decisions. When the Supreme Court takes up, for example, whether the Constitution precludes regulation of content on the Internet or whether Congress can require individuals to purchase health insurance, it does not simply try to divine what the founding generation would have understood about something they never thought about, but instead looks to its own precedents on the relevant provision, identifies the principles that unite them, and explains how it understands them to apply to the new circumstance. Those explanations are then subject to the test of public scrutiny, academic critique, and subsequent review.

For this reason, when law professors teach constitutional law, we assign casebooks, composed of hundreds of significant decisions handed down over more than two centuries, not eighteenth-century dictionaries. It is the Court’s evolving decisions, much more than the “original meaning,” that define what the Constitution means today. While interpretation of the First Amendment may start with the words “Congress shall make no law,” the meaning of free speech is not to be found in those words’ “original meaning,” but in the hundreds of cases that the Supreme Court has decided over the years, employing an incremental common law method that has resulted in a far more robust First Amendment today than the framers envisioned.

Constructing Basic Liberties, by the Boston University law professor James Fleming, is a useful companion to Chemerinsky’s critique of originalism. It offers a nuanced and comprehensive defense of common law constitutional interpretation as it has been applied to one of the Constitution’s most general and far-reaching provisions: the due process clause. Precisely because that clause’s terms are so open-ended, it is a test case for modes of interpretation.

Over more than one hundred years, the Supreme Court has interpreted the due process clause to require the strongest justification for governmental intrusions on bodily integrity and on significant decisions about one’s personal life, family, and intimate relations with loved ones. Just as with the First Amendment, neither the Court’s reasoning nor its results in this area can be squared with originalism. Rather, the Court’s decisions reflect the incremental accretion of precedent developed through common law constitutional interpretation. Some of the Court’s earliest due process decisions invalidated forced sterilization and protected parents’ rights to send their children to private schools. Later rulings recognized that the same principles encompassed the right—first of married and then of unmarried couples—to use contraception, the right of same-sex adult couples to have consensual sex, the right to have an abortion, the right to refuse unwanted medical treatment, and the right of interracial and same-sex couples to marry.

How did the Court generate all those specific rights from “due process”? Probably the best encapsulation comes from Justice John Marshall Harlan II (the grandson of the first Justice John Marshall Harlan), who wrote in 1961:

Due process has not been reduced to any formula; its content cannot be determined by reference to any code. The best that can be said is that through the course of this Court’s decisions it has represented the balance which our Nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty and the demands of organized society. If the supplying of content to this Constitutional concept has of necessity been a rational process, it certainly has not been one where judges have felt free to roam where unguided speculation might take them. The balance of which I speak is the balance struck by this country, having regard to what history teaches are the traditions from which it developed as well as the traditions from which it broke. That tradition is a living thing. A decision of this Court which radically departs from it could not long survive, while a decision which builds on what has survived is likely to be sound. No formula could serve as a substitute, in this area, for judgment and restraint.

To an originalist, this is apostasy. It eschews any formula and conceives of tradition as a “living thing.” But Fleming features the quote in his epigraph and devotes the rest of his book to explicating Harlan’s approach and ably defending it from its critics.

Does this common law approach, reasoning by analogy from one case to the next, leave room for judicial discretion? Of course it does. But no more so than originalism. Judges applying it are constrained by the demand that they apply precedent and defend their judgment with reasoning that makes sense of all that has preceded that decision. And where originalism purports to tie us to the mythical understandings of long-dead white men, Harlan and Fleming’s approach looks to the accumulated wisdom of preceding generations of jurists who have used legal reasoning to understand, apply, and thereby elucidate the Constitution’s open-ended provisions from generation to generation, ensuring that they reflect the nation’s most fundamental principles today.

Harlan’s approach, Fleming writes, conceives of the Constitution as a “‘basic charter’ of abstract principles promising liberty, not a code of specific, enumerated rights or a deposit of concrete historical practices.” It understands the task of interpretation as a process of reasoned judgment, “not a quest for a ‘formula,’ code, or bright-line framework.” And it looks to tradition to identify “the principles to which we as a people aspire, and for which we as a people stand, whether or not we have always realized them in our historical practices.”

One of the advantages of this approach is its humility. It treats the framers and ratifiers not as “authoritarian fathers who decided our questions for us and ordered us to follow their specific understandings and expectations,” but as creators of “a framework of constitutional self-government to be built out over time on the basis of experience, new insights, and moral progress.” Or as Justice Anthony Kennedy put it in Obergefell v. Hodges (2015), the case recognizing same-sex marriage:

The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.

Another advantage of the common law approach is its acknowledgment of the necessity of evolution. Like human beings, if legal systems are to survive, they must be capable of adapting to changed circumstances. One of the strengths of the Constitution, at least when interpreted as common law, is that it accommodates that adaptation. The size and complexity of the United States today would have been unthinkable in 1787. A stringent commitment to be bound by what we understand that generation to have envisioned would render the Constitution an artifact of historical interest, not a working framework for a nation of 330 million people.

The benefits of a common law over an originalist method are particularly evident with respect to questions about the constitutional validity of the federal administrative state. The many agencies that do the hard work of governing in such areas as energy, commerce, the environment, telecommunications, and labor relations are necessitated by our nation’s exponential growth, yet originalists point to their absence in the Constitution as grounds for imposing restrictions that just happen to accord with the Republican Party’s deregulatory agenda. Strictly and consistently applied, originalism would deem much of the administrative state unconstitutional and would render the government unable to protect and guide us in our increasingly complex world.

At bottom, judging requires judgment. That’s why we ask human beings, not machines, to undertake the task. Given the ineluctability of human judgment, there is no way to eliminate discretion. Originalism claims to rein in that discretion, but it does not.

More importantly, why would we want to be bound in 2022 by the specific understandings of a subset of our forefathers who were not representative of the nation’s population even at the time, and who had no conception of the world we now inhabit? Surely it is better to ask judges to consider all the sources that inform what our Constitution means today, including doctrinal evolution, and to look to tradition for the ideals it professes, not the actual practices that often fall short of those ideals. Judges applying common law constitutional interpretation are not free to impose their own value judgments; they are constrained by what went before them, by the future implications of their decisions, and by the obligation to spell out the legal reasoning on which they rely. That is all we can realistically ask.