The Utility and Limits of Originalism
The proponents of Originalism argue that it is the only and exclusive legitimate method of constitutional interpretation. In Bruen, for example, the Supreme Court rejected the test developed by the lower courts, which did factor in history, but also balanced a gun regulation’s purpose and effect in determining whether it violated the Second Amendment.
The majority held that history and tradition are the only relevant factors in weighing the constitutionality of gun laws. Effectively, if you can’t find an analogous regulation on the books in 1791, your law is toast.
I will be frank, I find this reasoning beyond the pale. Either Bruen is bad Originalism, or if isn’t, Originalism’s is bad constitutional law. The suicide pact is no longer figurative.
Setting aside for the moment the reductive and totalizing scope advanced by its most extreme proponents, does Originalism have its uses?
One distinction that is sometimes made is the difference between ambiguity and vagueness in constitutional language.
A word or phrase is ambiguous if it has multiple distinct and identifiable meanings. One of Originalism’s insights is that semantic drift can create ambiguities that would not have been predicted by the framers. It would be obviously anachronistic to apply a modern meaning that wasn’t known to the people who wrote or ratified the constitution.
Here’s a great example: Art. V, sec. 4 says the following:
The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.
Does this provision authorize the President to deploy the marines any time some dipshit hauls back and slugs his girlfriend? Clearly no. The phrase “domestic Violence” here is not being used in the modern sense of family strife, but rather has a meaning closer to events like January 6.
That one is easy, but there are more contested examples. The Second Amendment refers to a “well-regulated” militia. Advocates of gun restrictions frequently seize on this provision as evidence that government regulation of guns is permitted by the Second Amendment.
But well-regulated could also just mean “disciplined.” So, the Second Amendment could be saying instead that members of the militia (i.e. all able-bodied adult men) should own their own firearms so they can practice and drill together regularly. That way, they are armed and prepared to fight when the Red Coats come marching in to infringe our rights.
So in this case, there are two alternative readings of “well-regulated” that have drastically different implications for how the Second Amendment should operate today. This is an ambiguity that Originalism can hopefully help us answer.
Vague concepts, on the other hand, are inherently capacious in meaning and subject to interpretation. An example of a vague constitutional term is “liberty.” There was no more agreement about what constitutes liberty among the framers than there is between the framers and Americans today.
There is no good reason why we should defer to the opinion of a notorious slave-owning rapist like Thomas Jefferson on the meaning of liberty. I would submit that Originalism is singularly unhelpful in interpreting vague constitutional language. The founding generation is not entitled to a privileged position in the meaning of vague language.
And then there might even be constitutional concepts that actually invite modern reinterpretation. The Declaration of Independence calls the right to the “pursuit of happiness” inalienable.1 But of course, what makes one person happy will make another miserable.
And clearly, what people want from life changes over time. What made Thomas Jefferson happy would not appeal to many today. He similarly might not have had much interest in our way of life, if he could get in a time machine and travel to the 21st century.
But that’s the whole point. If the pursuit of happiness meant the pursuit of 18th century happiness, it would defeat the intent, because that wouldn’t make many people today happy (especially if you don’t happen to be a land-owning Protestant Anglo Saxon male).
So there may be times when the original intent or meaning of a constitutional term was that it should evolve and be reinterpreted over time rather than being locked in amber at the founding.
And that includes applications that the founding generation not only didn’t anticipate but possibly would have rejected. The modern movement for LGBT rights is about the pursuit of happiness, even if people at the founding would likely not have seen it that way, had they ever dreamed of it.
If so, could there be times when slavish adherence to founding era application would actually subvert the original meaning? In the case of these intentionally forward looking concepts, perhaps the correct Originalist interpretation is something approaching Living Constitutionalism.
Yes, I know that the pursuit of happiness does not appear in the constitution itself. It’s a useful example to demonstrate the point, though. An example in the constitution that perhaps similarly invites evolving interpretation is “cruel and unusual punishment.”