What is Originalism?
In my previous post, I dived into a discussion of Originalism assuming that I know what it is, and that it is even a single cohesive ‘thing’ that can be identified. But are those assumptions warranted?
In fact, there are different schools of Originalism, primarily divided between “original intent” and “original meaning.” In addition, while Originalism is primarily a product of the political right, proponents range across the political spectrum, with correspondingly different partisan valences flavoring their particular formulations of the doctrine.
At the far right end of the spectrum, Borkean Originalism is arch reactionism. The constitution is seemingly locked in amber as it was in the late 18th century. In this approach, constitutional law is a straightjacket, with predictable implications for 20th century innovations concerning unenumerated rights like contraception, abortion, and gay rights.
On the other hand, Professor Amar has proposed a (more) progressive originalism that gives the Reconstruction amendments greater prominence and treats the constitution as a work in progress that has on balance bent towards justice with the arc of history, despite its original sin.1
So what exactly is Originalism? Justice Barrett framed it this way:
I understand [the constitution] to have the meaning that it had at the time people ratified it. So that meaning doesn’t change over time.
The idea, then, at its core is that the constitution has an objective meaning that we can discover, and that meaning was fixed at the time the text was ratified.
Originalism is typically juxtaposed to so-called Living Constitutionalism; basically the idea that the meaning of the constitution should change over time in response to a changing society.2
You can immediately intuit how these two approaches map onto the American political spectrum. Conservatives, who fundamentally believe things were better in the past and that we should adhere to the values, beliefs, and practices of our forefathers, want a constitution that’s static. Liberals, who generally take dim view of the past and lean into a brighter future, demand a progressive constitution.
And so, what should be a super nerdy debate about obscure interpretive legal theory gets caught up in contemporary culture wars. Conservatives see the Originalist project as a return to the true constitution, which was distorted beyond all recognition by an activist Warren Court. Liberals however perceive it as a war on the constitution, orchestrated by shady FedSoc ideologues bent on turning back the clock to a more racist, sexist, unequal America.
But the social and political implications of Originalism are beside the point, from a legal perspective. Legally speaking the question is whether, or to what extent, Originalism is the correct or best way to interpret the constitution.
Let me be clear, though, I don’t mean to dismiss the importance of what outcome is the “right” one, or at least the preferable one, as a substantive matter (in contrast to its legal correctness). As I noted last time, for example, the consequences of the Dobbs decision for maternal health have been apparently atrocious, to no one’s surprise.
But from a legitimacy standpoint, how we arrive at an answer matters as much as what the answer is. And abortion is a great example. Opponents of abortion were quick to point out that Roe was piss poor constitutional analysis. Even legal scholars who supported abortion, such as John Hart Ely, have had to admit that Roe was badly reasoned and can’t be justified as constitutional law.
Now one might respond that the anti-abortion advocates would never have excepted Roe, regardless of its legal merits. Indeed, a women today unable to access life saving maternal care thanks to Dobbs is unlikely to be impressed by arguments for its technical legal correctness.
But it was the patent legal flaws in Roe that made it so easy for the Supreme Court’s new conservative super majority to decimate the constitutional right to abortion. It’s no coincidence the Supreme Court chose the right to abortion as the first pin to fall in its Originalist revolution. Roe was low hanging fruit.
It’s fundamental to the rule of law that no one individual or group, even the majority, can legitimately impose their preferences on the rest of us except through those legal processes and mechanisms that we have as a society agreed on. Because Roe could never be adequately justified in those terms, even by those who supported it as a policy matter, it could never be accepted as legitimate.
But is Originalism, compared to to Living Constitutionalism or any other approach, the correct or only legitimate way to understand the constitution? And if it is, is the Supreme Court’s recent History and Tradition formulation the correct or only legitimate form of Originalism?
What I haven’t seen is a radical left wing variant of Originalism in contradistinction to Bork. Maybe that is because the radical left has tended to characterize the constitution as inherently classist or racist, or dismissed the project of legal interpretation wholesale, rather than trying to grapple with constitutional law on its own terms. Perhaps the radical left, born of the French Revolution, is a phenomenon that post-dated the founding moment and so has nothing to say about the original meaning of the constitution.
As opposed to actually amending the constitution via Art. V. Formal amendment of course changes the actual text of the constitution, which is different from saying that the existing text should be reinterpreted in light of modern understandings and concerns, possibly in ways the original founders never would have contemplated or perhaps would even have rejected.