Originalism, Divided

The theory has not provided the clarity some of its early proponents had hoped it would.

An illustration of a red gun that has a flag in its barrel with the letter "W" on it, and a blue gun with a flag featuring the letter "E"
Getty / The Atlantic

About the author: Harry Litman is a former United States Attorney and Deputy Assistant Attorney General. He teaches constitutional law at UCLA and UCSD, and practices at Constantine Cannon, where he specializes in whistleblower cases under the False Claims Act.

Originalism—the idea that the meaning of each provision of the United States Constitution becomes fixed at the time of its enactment—in its contemporary form traces back to the advocacy of a few conservative judges, most prominently Antonin Scalia, in the mid-1980s. At the time, it was a rebel yell. The few self-styled originalists were railing against a long line of judicial precedents, particularly a set of Warren Court rulings that they viewed as mere expressions of liberal policy preferences.

Originalism is now well established, and most of the justices on today’s Supreme Court would express some fidelity to the basic concept. Even Justice Elena Kagan, one of the Court’s more liberal members, said at her confirmation hearing that “we are all originalists” these days. But the concept’s prominence has not provided the clarity some of its early proponents had hoped it would. In fact, fully conceived, originalism does not foreclose but requires the possibility that the provisions of the Constitution are best interpreted to produce “progressive” outcomes.

How is this? Superficially, originalism seems to call for the application of a term’s meaning, frozen from the time of enactment, to a present-day quandary. But this formulation requires an understanding of what, exactly, that meaning is. What is the original meaning of, say, cruel and unusual? Is it the principle those words captured at the time of their adoption, or is it the set of practices that the historical adopters would have considered to be cruel and unusual?

It is not at all clear that the conservative members of the Court today have taken stock of this elementary distinction between what we can call meaning and applications. Very likely, they, and other proud, card-carrying originalists, would reject it out of hand. They would see in the meaning-application distinction the smuggling in of a “living Constitution” that they have strived to bury.

But there is no getting around it, and the constitutional cases that will come before the Court in the next few terms are likely to tease it out.

Originalism has already been tested in this way, most importantly in Brown v. Board of Education, the landmark Warren Court opinion outlawing public-school segregation‚ in which the result was patently at odds with the expectation of the framers of the controlling constitutional provision—the Fourteenth Amendment, enacted in 1866. No tenable constitutional theory could disavow the correctness of Brown; indeed, Justice Brett Kavanaugh in his confirmation testimony cited Brown as one of the four most important in the Supreme Court’s history. But originalist defenses of Brown and other similar decisions give away more ground than they apparently realize.

To understand what that ground is—and why it matters so much—begin with the two main defenses of originalism, as propounded by Scalia along with Justice William Rehnquist, Judge Robert Bork, and the core members of the then-fledgling Federalist Society. The first was the concept’s supposed determinacy. Scalia savaged various theories of what he termed the “living Constitution” as hopelessly open-ended and unpredictable. Discerning the Constitution’s original meaning, by contrast, was fundamentally a down-the-middle judicial task.

The second tenet was originalism’s legitimacy—and the illegitimacy of a “living Constitution”—as an essential corollary to the very idea of a written constitution. The point of writing the Constitution down, originalists argued, was to fix its meaning. Any monkeying with meaning thereafter is the province of the legislative branch or the popular will, and the courts’ job is to set them straight.

The advocacy of prominent conservatives, especially the charismatic Scalia, brought originalism onto center stage, where it quickly drew strong opposition. Progressive critics in particular charged that originalism was a clever, neutral-sounding methodology designed to produce the results conservatives wanted for their own ideological reasons.

Opponents of originalism were quick to point out an apparent inconsistency between the doctrine and Brown specifically. The historical record shows that the legislators who voted for the Fourteenth Amendment—which incorporates a guarantee that states will not deprive citizens of “equal protection of the laws”—would have been shocked to be told that they had just voted to desegregate schools.

In response to this critique, Scalia and others drew a distinction between original intent (the subjective understanding of a provision in the minds of the legislators who enacted it) and original meaning—that is, what the text would reasonably have been understood to mean at the time of its enactment. “I don’t care,” Scalia said in a 1996 speech at the Catholic University of America, “if the framers of the Constitution had some secret meaning in mind when they adopted its words. I take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words.” Donald Trump’s three appointees to the Supreme Court, as well as nearly all self-proclaimed originalists, declare allegiance to originalism in its “original meaning” incarnation.

But “original meaning” turns out to require analytical nuance to ground a solid originalist case for Brown. Not only did the legislators who enacted the Fourteenth Amendment not expect that it would mandate desegregated public schools, but neither did society at large—Scalia’s “normal speakers of English.” There is no particular reason to believe that mid-19th-century elected representatives’ views of what equality required were distinct from the public’s. So the disavowal of the framers’ subjective expectations can’t itself anchor an originalist defense of Brown. For that, as the UCLA professor Mark Greenberg and I have argued, you need a distinction between the semantic meaning of provisions—roughly their dictionary definition—and the ways that a speaker or a society applies them. Otherwise put, between original meaning and original applications. The Fourteenth Amendment requires equal protection of the laws. For legislators—and citizens and judges—in 1865, that principle didn’t mandate integrated schools; for Americans in 1965, it did.

What had changed? Not the meaning of equality: Consult mid-19th-century dictionaries and you will find the explanations consistent with those of 1965. (This is nearly always the case. There are exceptional instances in which the dictionary definition of a term evolves over a short period of time like a century, such as with counterfeit or nice, but they are rare.) What had changed, rather, was the social understanding of what equality required. And how had that happened? In his opinion for the Court in Obergefell v. Hodges, establishing the constitutional equal footing of same-sex marriages, Justice Anthony Kennedy set out an explanation that could just as easily apply to the originalists’ understanding of how the Fourteenth Amendment came to support Brown:

The nature of injustice is that we may not always see it in our own times. 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.

Mid-19th-century legislators (and citizens) weren’t incompetent users of language. Rather they were limited, benighted, in their moral understanding. They failed to appreciate the full import of the words they had put into the Constitution. It’s an easy mistake to make; the witch hunters of Salem or the patriotic zealots who put Japanese Americans in detention camps made it as well, though they surely thought themselves evolved and fair. Undoubtedly, it’s a mistake that we continue to make in some fashion today.

The basic originalist idea is hard to quibble with. What possible theory of judicial review would permit judges to alter the meaning of words that were written down and agreed to years before? And once they were untethered from the original meaning, on what basis could unelected judges justifiably settle on a “new” meaning?

But properly understood, originalism does not suspend the Constitution in amber. And the recently appointed justices’ opinions, writings, and testimony make that clear, setting a collision course for a showdown on the right approach to originalism.

Justice Neil Gorsuch stated his case in his book A Republic, If You Can Keep It. In it, he sought to dispose of the criticism that “originalism leads to bad results because the results inevitably happen to be politically conservative results. Rubbish. Originalism is a theory focused on process, not on substance.”

Gorsuch went on to illustrate originalism by analyzing the examples of new developments and technologies that the Founders never could have imagined, such as the ability to search someone by thermal imaging or torture someone using a laser. In the case of the laser, Gorsuch explains, “as originally understood, the term ‘cruel’ in the Eighth Amendment’s Cruel and Unusual Punishments Clause referred (at least) to methods of execution deliberately designed to inflict pain. That never changes. But that meaning doesn’t just encompass those particular forms of torture known at the founding. It also applies to deliberate efforts to inflict a slow and painful death by laser.”

This distinction turns out to give away far more than Gorsuch apparently intends. Gorsuch seemingly thinks that what makes this example interesting is its incorporation of a neato modern invention—the laser—that would have amazed the Founders as modern technology amazed the monarch in A Connecticut Yankee in King Arthur’s Court. But he misses the bigger picture, in the same way Scalia did in his originalist argument for Brown, because he could as easily have substituted the laser for the stocks, ear cropping, or stoning, which nobody today would doubt that the Eighth Amendment prohibits, but which early colonists didn’t consider cruel and unusual.

Today we feel otherwise, and stoning would be widely condemned as barbaric. Confronted with these facts, what is a good originalist Court to do with an attempt by a state to reimpose the stocks? The answer, in my view, is straightforward. It should invalidate the law because it is cruel and unusual in our best, current understanding of that term. To do otherwise—to uphold it because the society that enacted the Eighth Amendment might not have seen it as cruel—would be to elevate their flawed judgment about what social practices are cruel at the expense of the original, and abiding, meaning of the term.

Gorsuch’s celebrated opinion for the Court in Bostock v. Clayton County last term is of a piece with a focus on the term’s original dictionary definition, rather than the set of things to which it was applied. The opinion, finding that Title VII’s prohibition of discrimination on the basis of “sex” protects gay and lesbian people, was heralded as a straightforward “originalist” opinion reaching a liberal result, and thus as proof of originalism’s political neutrality. Gorsuch reasoned that the result “follows ineluctably from the statutory text” even though “few in 1964 expected today’s result.” And it does, but not because society as a whole would have concurred in 1964. On the contrary: Not only the framers of Title VII, but the entire society at the time would have found the law’s interpretation bizarre, as Gorsuch in fact noted in the opinion. The constant is to the provision’s principle of sexual discrimination, a fixed principle that Gorsuch, and at least arguably society as a whole, now understands to apply to a broader set of practices and people.

In her confirmation testimony, Justice Amy Coney Barrett implicitly invoked the distinction between the two kinds of original-meaning jurisprudence and connected it to an incipient conservative-liberal split in the federal courts. Barrett had already identified herself as a “public-meaning originalist.” “The text is text,” she said in her testimony, “and I understand it to have the meaning that it had at the time people ratified it. It does not change over time, and it is not up to me to update it.”

But her testimony the following day essentially endorsed the idea that although the semantic meaning of the text may be fixed, the understanding of which practices the text captures undergoes social evolution. Asked by Senator Lindsey Graham to elaborate on her sense of originalism, Barrett pointed to the example of the Fourth Amendment. “So the Fourth Amendment is a principle,” she said. “It protects against unreasonable searches and seizures, but it doesn’t catalog the instances in which an unreasonable search or seizure could take place. It enshrines a principle, and we understand the principle as it was at the time, but then it’s capable of being applied to new circumstances.

As Gorsuch did, Barrett proffered the example of new technology such as cellphones. But as with his reasoning, the implications of her argument go much further than her testimony suggested. They necessarily reach instances in which practices thought reasonable in 1791 are no longer so understood, not because the meaning of unreasonable search and seizure has changed but because of changes in social judgments of reasonableness. The amendment enshrines an abiding principle, not the set of outcomes that society would have expected in 1789. The principle is stable and stagnant; the set of practices to which it applies is dynamic to the extent that social judgments about reasonableness develop.

A clear majority of the current Court justices would describe themselves as “originalist.” But there is an unresolved ambiguity in this declared allegiance. Look for that ambiguity to be pivotal as the Court begins to reshape the law in a welter of areas of crucial importance to American society, including abortion rights, free exercise, gun rights, and administrative agencies.

The terms of the battle will be the determinative sense of “original meaning.” I expect that we will see Kagan and others on the left battle with the majority on the originalist playing field, but with arguments, derived from cases such as Bostock, that highlight the evolved social understanding of the import of fixed constitutional terms such as equal protection and due process. Those terms, it is commonly agreed, set out unchanging principles; but social understanding progresses over time in a way that necessarily alters our best judgments—and a court’s—of which practices those terms reach. A court must apply original meaning, the Constitution’s unchanging principles. Yet it can’t ignore changes—or to use a dreaded term, evolutions—in social understanding of what those principles require in practice. So we may all be originalists now, but not in the way many originalists themselves might imagine it.