Constitutional 'originalism' and the Supreme Court

“Originalism” is the legal philosophy that says the Constitution should be taken to mean what it meant when it was written. That simple idea has become one of the most powerful forces in American law, shaping how judges read the nation’s founding document and how they decide some of its biggest constitutional battles. It has become so influential that, although it was popularized by the conservative Justice Antonin Scalia, even the liberal Justice Elena Kagan famously said at her confirmation hearing in 2010: “We are all originalists now.” 

While generally seen as aligned with conservative politics, originalism has become such a prominent legal philosophy that the more typical originalists of a conservative bent have been joined by a newer school of so-called liberal originalists.

The origins of originalism

What is now commonly known as “constitutional originalism” arose out of twentieth-century debates surrounding judicial power. It was in part a reaction to the perceived excesses of the Supreme Court under Chief Justice Earl Warren, during which a more liberal U.S. Supreme Court majority greatly expanded many constitutional rights. Critics would charge that at least some of the hallmark decisions of the Warren Court, such as Miranda v. Arizona's (1966) determination that a person not only had “the right to remain silent” but also the right to to be informed by police about the right to remain silent, seemed more like legislative rulings than judicial rulings.

One of the key foundational texts of modern originalist theory is a law review article by the famous judge and author Robert Bork, titled “Neutral Principles and Some First Amendment Problems” (1971), in which he argued that judges cannot legitimately choose among competing social values according to their own moral preferences when deciding a case. Their authority, he suggested, must instead derive from value choices already embodied in the Constitution. Courts should look to the values that the Framers included in the constitutional text and translate those choices into principled legal rules. 

During the Reagan era, originalism transformed from a scholarly theory into a legal movement. As Administration lawyers expressly advocated for originalism, new legal societies and organizations were creating institutional networks for interested scholars and lawyers. These networks promoted ideas like judicial restraint, federalism, textualism, and originalism. In a major 1985 speech, U.S. Attorney General Edwin Meese advocated for what he called a “jurisprudence of original intention,” urging judges to adhere to constitutional language and, where available, a demonstrable consensus among the Framers and ratifiers concerning the constitutional principle involved.

After his appointment in 1986, Supreme Court Justice Antonin Scalia became one of the most influential advocates of originalism. He articulated and defended the theory in works such as A Matter of Interpretation: Federal Courts and the Law and his law review article, “Originalism: The Lesser Evil.” More importantly, Scalia put originalism into practice in his judicial opinions, frequently relying on what he took to be the Constitution’s original public meaning. Scalia authored 870 opinions during his tenure on the Court, and his influence helped move originalism into the mainstream, shaping how later justices (such as his former clerk, now Justice, Amy Coney Barrett), lawyers, and scholars approached questions of constitutional meaning.

Originalism is not without its critics. Opponents of the approach charge that originalism is an outdated model of interpretation, and that it fails to take into account that it may be impossible to discern original intent. For example, in his book Worse Than Nothing: The Dangerous Fallacy of Originalism, renowned constitutional scholar and UC Berkeley School of Law dean Erwin Chemerinsky wrote that “it is simply wrong to assume that any constitutional provision has an ‘original meaning’ that can be discerned.” Chemerinsky also argues that a narrow focus on “original intent” can lead to a diminution or reduction of constitutional rights and freedoms. Mirroring to some extent originalists’ criticism of the Warren Court’s alleged liberal activism, Chemerinsky suggests that originalism has been used as a vehicle for conservative extremists to impose their own value judgments on the Constitution.

Originalism in practice, from Scalia to Gorsuch

The Court’s decision in Dobbs v. Jackson Women’s Health Organization (2022), which reversed the landmark ruling Roe v. Wade (1973) by finding no Federal constitutional right to abortion, is often cited as one example of originalists turning back the clock on civil rights. In her book The Originalism Trap, attorney Madiba K. Dennie argues that originalism “is regressive by nature” because of its “outsized focus on the alleged original meaning of the Constitution.”

While critics commonly point to originalism’s use in rolling back the expansion of Federal constitutional law in some areas, such as abortion, originalists have also authored opinions that have expanded the reach of constitutional rights. Consider the Supreme Court’s decision in Crawford v. Washington (2000). The defendant in that case, Michael Crawford, allegedly stabbed a man he believed had sexually assaulted his wife, leading Washington state prosecutors to charge him with assault and attempted murder. At trial, prosecutors played his wife’s recorded statement to police even though she refused to testify against her husband, as was her right under the state’s marital privilege law. Appealing to the original meaning of the Sixth Amendment’s Confrontation Clause, the Supreme Court ruled the recording inadmissible, since the defendant had no ability to cross-examine someone who refused to testify, in the process, protecting criminal defendants from unreliable hearsay evidence. Justice Scalia, who authored the Court’s landmark opinion (indeed, a unanimous decision for the accused Crawford) referred to it as a thoroughly originalist Supreme Court opinion.

The Supreme Court’s so-called “ultimate originalist,” Justice Clarence Thomas, has used this same approach to defend free-speech interests. In McIntyre v. Ohio Elections Commission (1995), the Court invalidated an Ohio elections law that required all election issue publications and pamphlets to have an identifiable author. Margaret McIntyre contended she had a First Amendment right to disseminate leaflets about a school tax levy anonymously. The Supreme Court agreed, noting that there was a long history of anonymous or pseudonymous political publications in the United States, from the Federalist Papers to Common Sense. 

In his concurring opinion, Thomas explained that, as originally understood, the meaning of “freedom of speech, or of the press” protected anonymous political leafleting. “The historical evidence indicates that Founding-era Americans opposed attempts to require that anonymous authors reveal their identities,” he argued, “on the ground that forced disclosure violated the ‘freedom of the press.’”

In his concurring opinion in 44 Liquormart v. Rhode Island (1996), which dealt with Rhode Island laws forbidding liquor price advertising in an attempt to promote temperance, Thomas argued that truthful commercial speech should no longer receive second-class treatment in First Amendment jurisprudence.

“I do not see a philosophical or historical basis for asserting that ‘commercial’ speech is of ‘lower value’ than ‘noncommercial’ speech. Indeed, some historical materials suggest to the contrary,” Thomas wrote, citing numerous sources for the idea that advertising was “integral to colonial life.” 

In more recent years, originalism’s staunchest practitioners on the Supreme Court have argued that hewing to the rights and values embodied in the Constitution can still adequately address modern legal debates. In his book A Republic, If You Can Keep It, Justice Neil Gorsuch writes, “Originalism teaches only that the Constitution’s original meaning is fixed; meanwhile, of course, new applications of that meaning will arise with new developments and new technologies.” 

The internet, explains Gorsuch, is one such example. While the Founders did not envision the phenomenon of social media, one can be an originalist and apply the First Amendment’s protection to this new technology. “As originally understood, the First Amendment protected speech. That guarantee doesn’t just apply to speech on street corners or in newspapers; it applies equally to speech on the Internet,” he said. In other words, emerging technologies must be regulated according to existing constitutional protections.

Justice Gorsuch also used an originalist approach to find that trial by jury in criminal cases must be unanimous in Ramos v. Louisiana (2020), overruling decisions in the early 1970s upholding 10-2 jury verdicts. He explained: 

Wherever we might look to determine what the term “trial by an impartial jury” meant at the time of the Sixth Amendment’s adoption — whether it’s the common law, state practices in the founding era, or opinions and treatises soon afterward — the answer is unmistakable. A jury must reach a unanimous verdict in order to convict. 

Originalism has evolved considerably since it emerged as a distinct constitutional theory in the late twentieth century. What began largely as a response to concerns about the excesses of the Warren Court and the legitimacy of judicial review transformed into a broader debate over the ways in which the Constitution’s original meaning should govern a changing society. Whatever its limitations, originalism has become a central part of American constitutional debate, shaping both Supreme Court decisions and the broader public discussion of the limitations of government and human rights.