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Support for Originalism
Critiques of Originalism
Ongoing Debate

Originalism is a controversial legal doctrine that calls for constitutional provisions to be interpreted according to the original intention of the Framers of the Constitution to the United States or the original meaning of the terms as generally understood at the time of ratification. In this Court Report, court expert Kenneth Jost evaluates originalism's supporting and opposing viewpoints and the ongoing debate of which idealism the Supreme Court justices should follow as they make decisions.

The originalism theory has a powerful allure for the general public as requiring judges to strictly follow the law rather than decide cases based on their subjective views. Most academic commentary about the doctrine is highly critical on the ground that the doctrine actually leaves judges wide discretion on how to interpret constitutional provisions.

Political conservatives propagated and popularized the doctrine beginning in the 1970s in reaction to the Supreme Court's liberal rulings of the 1950s and 1960s. Public opinion polls find majority support for the methodology, but a 2022 poll of law professors found that a large majority of those at top schools reject the doctrine as opposed to interpreting the Constitution in the light of current times and political identities. Only 17 percent of those surveyed "accept" or even "lean towards" originalism, whereas more than 75 percent "reject" or "lean against it."

Support for Originalism

One of the most important proponents of originalism was Robert Bork, who propounded the doctrine when the Senate conducted hearings on his unsuccessful 1987 nomination to the Supreme Court. In his testimony, Bork rejected on originalist grounds any right to privacy under the Constitution.

Bork, who had earlier served as U.S. solicitor general under President Ronald Reagan, laid the groundwork for originalism in a law journal article published in 1971 under the title "Neutral Principles and Some First Amendment Problems." Bork did not adopt the term "originalism" in the article, but he argued that the First Amendment was intended to protect political speech only, not literary or artistic works.

"The Supreme Court's constitutional role appears to be justified," Bork wrote, "only if the Court applies principles that are neutrally derived, defined, and applied."

The Senate rejected Bork's nomination to the Supreme Court by a wide margin even though a leading advocate of originalism, Antonin Scalia, had been confirmed unanimously to the Supreme Court two years earlier in 1986.

In his nearly thirty years on the Court, Scalia succeeded in embedding originalism as a dominant method of constitutional interpretation. Originalism gained a stronger position on the Court after President Donald J. Trump named three self-proclaimed advocates of originalism to the Court in his four years in the White House: Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett.

Trump's three appointees provided critical votes for two originalist-style decisions issued in the 2021 term that overruled the Roe v. Wade (1973) abortion rights precedent and that established a presumptive Second Amendment right to carry firearms outside the home.

Three originalist law professors-Yale's Steven Calabresi and Akhil Amar and University of Illinois's Vikram David Amar-filed an amicus brief in the Court's 2022 term that congratulated the Court for adopting originalist methods in those cases.

"In recent landmark rulings," the law professors wrote in the brief, "this Court has properly recommitted itself to originalism, promising to interpret the Constitution as Americans publicly understood the document when adopting it, with special attention to governmental actions immediately preceding and immediately glossing the enacted text."

Critiques of Originalism

Despite the advancing strength of originalism at the Court, two nationally prominent law professors have published strongly argued, book-length critiques of originalist methodology. In his book, Erwin Chemerinsky, dean of the University of California, Berkeley, School of Law, called originalism in the title and subtitle "Worse Than Nothing" and a "Dangerous Fallacy" (Yale University Press, 2022). In an opening chapter, Chemerinsky insists that originalism "is not an interpretive theory at all," but "just the rhetoric conservative justices use to make it seem that they are not imposing their own values, when they are doing exactly that."

Eric Segall, a professor at Georgia State University College of Law, titled his book "Originalism as Faith" (Cambridge University Press, 2018) and quoted a dictionary definition of faith as "a firm belief in something for which there is no proof."

In his book, Segall notes that Scalia marketed originalism in national speaking tours, in which he criticized the "living Constitution" doctrine and instead repeatedly described the Constitution as "dead, dead, dead." Scalia went on in these public appearances to mock the advocates of living constitutionalism. "You would have to be an idiot to think that the Constitution is alive," Scalia liked to add.

The publisher's summary of Segall's book describes it as "a comprehensive history of the originalism debates" and adds that the book "shows how the doctrine is rarely used by the Supreme Court, but is employed by academics, pundits, and judges to maintain the mistaken faith that the Court decides under the law instead of the justices' personal values."

Ongoing Debate

A leading proponent of originalism, Georgetown Law School professor Lawrence Solum, has argued that originalism has been the "predominate" method of constitutional interpretation through U.S. history. Chemerinsky and Segall both vigorously dispute Solum's description of Supreme Court history.

In fact, the Court has adopted "living constitutionalism" philosophy in any number of significant constitutional law decisions. As one example, Justice Anthony M. Kennedy closed the Court's decision in Lawrence v. Texas (2003) by establishing a constitutional right for consenting adults to engage in same-sex sexual activity with this acknowledgment that the Constitution must be interpreted according to contemporary circumstances: "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 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. When new insight reveals discord between the Constitution's central protections and a received legal stricture, a claim to liberty must be addressed."

Chemerinsky and Segall both emphasize this difficulty with originalist methodology: the Court's historic school desegregation decision in Brown v. Board of Education (1954) is all but impossible to defend on originalist grounds. The Congress that approved the Fourteenth Amendment with its Equal Protection Clause also instituted racial segregation in public schools in the District of Columbia. Thus, as Chemerinsky puts it, "it is very difficult to say that the original meaning of the Fourteenth Amendment was to eliminate racially segregated schools."

Chemerinsky describes this issue as "the abhorrence problem." Originalist methodology if strictly applied, he explains, would leave individual rights in many contexts unprotected. "Segregation, as well as racial discrimination generally, is constitutionally permissible under originalism;" Chemerinsky writes in a summary critique. "[E]qual protection provides no protection for anyone other than racial minorities; and the First Amendment allows the government to prohibit blasphemy and seditious libel."

In his book, Segall directly quotes the Brown Court's passage rejecting originalist methodology in considering the constitutionality of racial segregation. "In approaching this problem," Chief Justice Warren wrote in the opinion, "we cannot turn the clock back to 1868 when the Amendment was adopted or even to 1896 when Plessy v. Ferguson was written. We must consider public education in the light of its full development and its present place in American life throughout the Nation."

Segall also quotes law professor Stephen Griffin's description of Brown as "deliberately and unanimously not based on any version of original intent or meaning . . ."

Somewhat paradoxically, Segall provides ammunition for the originalists' critique of the Warren Court by listing ten of the Court's most important decisions, such as the school prayer rulings, Miranda, Gideon v. Wainwright (right to counsel for indigent defendants), Roe v. Wade, and the Loving v. Virginia decision to strike down laws banning interracial marriage. All of those decisions, Segall writes, "would have shocked those who wrote and ratified . . . the Reconstruction Amendments." Many of them, Segall adds, "contained little or no discussion of originalist evidence." In like vein, Segall lists the "one person, one vote" standard in reapportionment cases as "another glaring example of non-originalist analysis."

Segall also notes that Scalia and Thomas have adopted as original intent a "color-blind" interpretation of the Fourteenth Amendment in voting against every affirmative action program they have ever reviewed. Segall concedes that it is "plausible" for judges to read the amendment's text to prohibit all racial preferences even those designed to foster racial equality and diversity. But Segall adds that it is "equally plausible" to read the text to justify the government's use of limited race-based remedies. "[T]he text of the Equal Protection Clause," Segall concludes, "does not resolve the issue of race-based preferences."

Two cases early in the 2022 term presented opposing arguments on the use of race-based remedies under the Equal Protection Clause. In the first of the cases, Merrill v. Milligan [argued October 4], the Court's newest justice, Ketanji Brown Jackson, argued from the bench that the Fourteenth Amendment permits race-based remedies such as court-ordered redistricting plans to require the drawing of majority-Black districts. "The Framers themselves adopted the Equal Protection Clause in a race-conscious way," Jackson said in challenging the Alabama state's lawyer who was opposing the lower court's order to create two majority-Black congressional districts.

Three weeks later, the Court on October 31 considered challenges to affirmative action admission policies at two major U.S. universities, the University of North Carolina and Harvard University. The plaintiffs challenging the policies, Students for Fair Admission, argued that both universities were violating federal civil rights law by giving Black and Hispanic applicants preferences over Asian American applicants. Conservative justices, including Thomas, Alito, Gorsuch, and Chief Justice Roberts, were all critical of the earlier precedent that allowed universities to consider an applicant's race in evaluating the applicant's qualification for admissions.

By the end of the arguments, however, Court watchers described the justices as seemingly ready to overrule the earlier decision and to bar affirmative action policies in U.S. colleges and universities.

In his book, Chemerinsky argues that conservative justices' opposition to affirmative action "is not sustainable under originalism." Instead, Chemerinsky writes, "[F]rom an originalist perspective, affirmative action is clearly constitutional." "There is no basis," Chemerinsky adds, "for concluding that those who wrote the Constitution, or who drafted and ratified the Fourteenth Amendment, ever meant to create a requirement for color blindness."

Chemerinsky also identifies other logical contradictions of originalism. As one example, he cites what he calls the "epistemological problem." "For the vast majority of constitutional issues that arise," he writes, "there is not a clear original meaning. With so many people involved in drafting and ratifying any given provision, there cannot be."

In a 2019 law journal article, Solum has attempted to clarify the points of disagreement between originalists and living constitutionalists. He defines originalism in these terms: "[T]he word should be used to refer to members of the family of constitutional theories that affirm both the Fixation Thesis (the meaning of the constitutional text is fixed at the time each provision is drafted," and "the Constraint Principle (constitutional practice should, at a minimum, be consistent with the original meaning."

In his book, Chemerinsky also identifies what he calls "the modernity problem," for example, the Framers' understanding that a search limited by the Fourth Amendment must be a physical search. In successive cases involving law enforcement wiretapping of suspects' phone conversation, the Supreme Court initially held in Olmstead v, United States (1928) that wiretapping did not constitute a search. Forty years later, the Court in Katz v. United States (1967) abandoned the originalist methodology invoked in Olmstead to hold that wiretapping in fact amounts to a search that violates a suspect's reasonable expectation of privacy under the Fourth Amendment.

Three decades after Katz, the Court again held that the Fourth Amendment applies to modern-technology searches even without a physical trespass. The 5-4 ruling in Kyllo v. United States (2001) held that the use of thermal-imaging devices to monitor heat radiation in or around a person's home is unconstitutional without a search warrant even if conducted from a public vantage point. Chemerinsky notes that Scalia, Thomas, and Gorsuch reject the "reasonable expectation of privacy" test, adhering to the requirement of a physical trespass.

"This is the modernity problem," Chemerinsky writes, "looking solely at original meaning in interpreting a constitutional provision leaves no way to deal with modern problems that could not have been fathomed by the Constitution's drafters."


Document Citation
Kenneth Jost, Originalism: Defended and Debated, CQ Supreme Court Collection (2022),
Document ID: cqelsc-1619-117981-3004298
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