Originalism

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Originalism is a legal theory that bases constitutional, judicial, and statutory interpretation of text on the original understanding at the time of its adoption. Proponents of the theory object to judicial activism and other interpretations related to a living constitution framework. Instead, originalists argue for democratic modifications of laws through the legislature or through constitutional amendment.^[1]

Originalism consists of a family of different theories of constitutional interpretation and can refer to original intent or original meaning.^[2] Critics of originalism often turn to the competing concept of the Living Constitution, which asserts that a constitution should evolve and be interpreted based on the context of current times.^[3][4] Originalism should not be confused with strict constructionism.^[5]

Contemporary originalism emerged during the 1980s and greatly influenced American legal culture, practice, and academia.^[6] Over time, originalism became more popular and gained mainstream acceptance by 2020.^[7]

Proponents of originalism argue that originalism was the primary method of legal interpretation in America from the time of its founding until the time of the New Deal, when competing theories of interpretation grew in prominence.^[8][9][10]

Jurist Robert Bork is credited with proposing the first modern theory of originalism in his 1971 law review article, Neutral Principles and Some First Amendment Problems, published in The Yale Law Journal.^[11] He noted that without specification in a constitutional text, judges are free to input their own values while interpreting a constitution. Bork proposed one principled method to avoid this: for judges to "take from the document rather specific values that text or history show the framers actually to have intended and which are capable of being translated into principled rules."^[10] By following the original meaning, an originalist Supreme Court would therefore "need make no fundamental value choices," and its rulings would be restrained.^[12]

Law professor Raoul Berger expanded on the theory in Government by Judiciary (1977), positing that the rulings by the Warren and Burger Courts were illegitimate, as they deviated from the Constitution's original intent.^[13] In 1985, Edwin Meese, United States Attorney General under President Ronald Reagan, advanced a constitutional jurisprudence based on original intent in a speech before the American Bar Association, a jurisprudence that "would produce defensible principles of government that would not be tainted by ideological predilection."^[14] A few months after the speech, Justice William Brennan rejected Meese's view, claiming that the original intent of the Founding Fathers of the United States was indiscernible, and that text could only be understood in present terms.^[15]

During the 1980s, liberal members of the legal academy criticized the original intent formulated by Bork, Berger, and Meese.^[16] Serious opposition, beginning in law schools, evolved from debates in singular law review articles to books.^[17] In 1980, Paul Brest, who later became the dean of Stanford Law School, published "The Misconceived Quest for the Original Understanding,"^[18] an article whose criticism of originalism proved formative and influential.^[19] Brest argued that a collective intent among the Founding Fathers of the United States was nonexistent and attempting to do so would be extremely difficult.^[20] He also posited that historical changes between the time of adoption to the present made originalism inapplicable in areas such as free speech, freedom of religion, federalism, and gender discrimination.^[21] Other scholars of the period adopted and expanded Brest's critiques, including H. Jefferson Powell and Ronald Dworkin.^[22] Brest and Powell suggested versions of originalism that sought higher purposes than a specific framer's intent, leading to a shift in the dominant form of originalism from original intent to the original public understanding.^[23]

The debate grew more heated with the failed Supreme Court nomination of Robert Bork in 1986^[24] with the 1990s seeing originalism becoming a broadly endorsed view in the conservative legal movement. The Department of Justice under the Ronald Reagan administration played an important role in lending legitimacy to originalism in the 1980s.^[25][26][27]

In May 2024, conservative justices on the Supreme Court are reported to be considering new alternative interpretations of originalism.^[28]

The historical arguments made by Hugo Black in Everson v. Board of Education relied entirely on historical evidence of the views of Madison and Jefferson and the appropriateness of interpreting the Establishment Clause based on that evidence.^[29] Edwin Meese once remarked that Black's record was evidence that "jurisprudence of original intention is not some recent conservative ideological creation".^[30]

Original public understanding originalism bases the meaning of a constitutional provision on how the public which ratified it would have generally understood it to mean.^[23] Antonin Scalia was one of its most prominent theorists.^[31][32]

The conservative originalist movement spearheaded by Raoul Berger in the 1980s was a call for judicial restraint but over the years important differences have developed among originalist scholars.^[33] Amy Coney Barrett explains:^[34]

A faithful judge resists the temptation to conflate the meaning of the Constitution with the judge’s own political preference; judges who give into that temptation exceed the limits of their power by holding a statute unconstitutional when it is not. That was the heart of the originalist critique of the Warren and Burger Courts. At the same time, fidelity will inevitably require a court to hold some statutes unconstitutional.

Justice Amy Coney Barrett, who has been described as a protégé of Scalia's, said at her confirmation hearing that she interprets the Constitution "as text, and I understand it to have the meaning that it had at the time people ratified it."^[35][36]

The originalism debate has divided the American public since the school desegregation decision in Brown v. Board of Education.^[37] Justices Antonin Scalia, Amy Coney Barrett, Clarence Thomas and Neil Gorsuch describe themselves as originalists in scholarly writings and public speeches.^[38][39]

Supreme Court Justice Elena Kagan, a frequent critic of conservative originalism, argues that some aspects of the constitution were intentionally broad and vague to allow for future generations to interpret them along with the times.^[40]

Michael Waldman argues that originalism is a new concept, and not one espoused by the founders.^[41]

According to a 2021 paper in the Columbia Law Review, the Founding Fathers did not include a nondelegation doctrine in the Constitution and saw nothing wrong with delegations as a matter of legal theory, contrary to the claims of some originalists.^[42]

Columbia Law School legal scholar Jamal Greene argues that originalism is remarkably unpopular outside the United States (including Canada, South Africa, India, Israel, and most of Europe), where minimalism or textualism are the recommended responses to judicial activism.^[43]

Supreme Court Justice William J. Brennan Jr. described originalism as "arrogance cloaked as humility"^[44] during a 1985 speech at Georgetown University. In this speech, he also stated “It is arrogant to pretend that from our vantage we can gauge accurately the intent of the framers", and that politicians that claim to do so are motivated purely by political reasons, as they “have no familiarity with the historical record."

Harvard Law School legal scholar Richard H. Fallon Jr. argues at length that the Supreme Court Justices who claim to be Originalists actually apply Originalism in a highly selective manner "which typically abets substantively conservative decisionmaking."^[45]

Many Originalists reject any consideration of International law (with an exception for British law before 1791).^{[citation needed]} Justice Scalia, echoing Chief Justice John Marshall in Marbury v. Madison, wrote that "We must never forget that it is a Constitution for the United States of America that we are expounding. . . . Where there is not first a settled consensus among our own people, the views of other nations, however enlightened the Justices of this Court may think them to be, cannot be imposed upon Americans through the Constitution."^[46]

Antonin Scalia differentiated the two by pointing out that, unlike an originalist, a strict constructionist would not acknowledge that he uses a cane means he walks with a cane (because, strictly speaking, this is not what he uses a cane means).^[47] Scalia averred that he was "not a strict constructionist, and no-one ought to be"; he goes further, calling strict constructionism "a degraded form of textualism that brings the whole philosophy into disrepute".^[48]

Legal scholar Randy Barnett asserts that originalism is a theory of interpretation and that constructionism is only appropriate when deriving the original intent proves difficult.^[49]

Declarationism is a legal philosophy that incorporates the United States Declaration of Independence into the body of case law on level with the United States Constitution. It holds that the Declaration is a natural law document and so that natural law has a place within American jurisprudence.^[50] Harry V. Jaffa and Clarence Thomas have been cited as proponents of this school of thought.^[50]

• Living Constitution
• Unconstitutional constitutional amendment

• Barnett, Randy E. (2004). Restoring the Lost Constitution: The Presumption of Liberty. Princeton, New Jersey: Princeton University Press. ISBN 978-0691115856.
• Baude, William; Sachs, Stephen E. (August 2019). "Originalism and the Law of the Past". Law and History Review. 37 (3). American Society for Legal History: 809–820. JSTOR 26756362.
• Baude, William (2017). "Originalism as a Constraint on Judges". The University of Chicago Law Review. 84 (3): 2213–2229. JSTOR 45063673.
• Calabresi, Steven G., ed. (2007). Originalism: A Quarter-Century of Debate. Washington, DC: Regnery Pub. Inc. ISBN 978-1-59698-050-1.
• Chemerinsky, Erwin (2022). Worse Than Nothing: The Dangerous Fallacy of Originalism. Yale University Press. ISBN 978-0300259902.
• Cross, Frank (2013). The Failed Promise of Originalism. Stanford University Press.
• Drakeman, Donald L. (2010). Church, State and Original Intent. Cambridge University Press.
• Fontana, David (February 1, 2011). "Comparative Originalism". Texas Law Review. 88: 189–199. SSRN 1753013.
• Kesavan, Vasan and Paulsen, Michael Stokes. "The Interpretive Force of the Constitution's Secret Drafting History", 91 Georgetown Law Journal 1113 (2003).
• Lawson, Gary S. "On Reading Recipes — and Constitutions", 85 Georgetown Law Journal 1823 (1997).
• Levinson, Sanford (1988). "Law as Literature". In Mailloux, Steven; Levinson, Sanford (eds.). Interpreting Law and Literature: A Hermeneutic Reader. Northwestern University Press.
• Maltz, Earl (2000). "Brown v. Board of Education and "Originalism"". In George, Robert P. (ed.). Great Cases in Constitutional Law. Princeton University Press.
• O'Neill, Jonathan (September 17, 2007). Originalism in American Law and Politics: A Constitutional History. The Johns Hopkins Constitutional Thought. Johns Hopkins University Press. ISBN 978-0801887604.
• Rakove, Jack N. (1996). Original Meanings: Politics and Ideas in the Making of the Constitution. New York: Alfred A. Knopf. ISBN 0-394-57858-9.
• Sawyer, Logan E. (August 2019). "Method and Dialogue in History and Originalism". Law and History Review. 37 (3). Cambridge University Press: 847–860.
• Segall, Eric J. (2018). Originalism as Faith. Cambridge University Press. doi:10.1017/9781108105316. ISBN 9781108105316.
• Whittington, Keith E. (1999). Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review. Lawrence, Kansas: University Press of Kansas. ISBN 0-7006-0969-5.
• Whittington, Keith E. (2013). "Originalism: A Critical Introduction". Fordham Law Review. 82 (2): 375–409.
• Wurman, Ilan (August 2017). A Debt Against the Living: An Introduction to Originalism. Cambridge University Press. doi:10.1017/9781108304221. ISBN 978-1108412162.
• Strang, Lee J. (2019). Originalism's Promise: A Natural Law Account of the American Constitution. Cambridge University Press. doi:10.1017/9781108688093. ISBN 978-1108475631. LCCN 2019000042.
• Solum, Lawrence B. (2011). "What is Originalism? The Evolution of Contemporary Originalist Theory". Georgetown Law Journal: 1–41. doi:10.2139/ssrn.1825543.
• Huscroft, Grant; Miller, Bradley W., eds. (October 2011). The Challenge of Originalism: Theories of Constitutional Interpretation. Cambridge University Press. doi:10.1017/CBO9781139003926. ISBN 9781139003926.
• Yarbrough, Tinsley E. (1988). Mr. Justice Black and his critics. Duke University Press.

• Joseph J. Ellis (2018). American Dialogue: The Founders and Us. Knopf. ISBN 978-0385353427.
• Why Originalism Is So Popular (January 13, 2011) by Eric A. Posner, The New Republic
• Trumping Precedent with Original Meaning: Not as Radical as It Sounds (4 May 2005) by Randy Barnett
• Barrett, Amy Coney; Nagle, John Copeland (October 2016). "Congressional Originalism". Journal of Constitutional Law. 19 (1). Philadelphia, Pennsylvania: University of Pennsylvania: 5–42.

• The Originalism Blog at the Center for the Study of Constitutional Originalism at the University of San Diego School of Law
• Lecture by Antonin Scalia at Woodrow Wilson Center via Center for Individual Freedom comparing and contrasting originalism from the "living constitution" approach (2005)