What Is Originalism? Definition and Examples

U.S. Supreme Court Building: Inscription "Equal Justice Under Law" and sculpture.
U.S. Supreme Court Building: Inscription "Equal Justice Under Law" and sculpture. Moment / Getty Images

Originalism is a judicial concept asserting that all statements in the United States Constitution should be interpreted strictly according to how it would have been understood or was intended to be understood at the time it was adopted in 1787. 

Key Takeaways: Originalism

  • Originalism is a concept demanding that all judicial decisions be based on the meaning of the US Constitution at the time it was adopted.
  • Originalists contend that the Constitution should be interpreted strictly according to how it would have been understood by the Framers.
  • Originalism is in contrast to the “living constitutionalism” theory—the belief that the meaning of the Constitution must change over time. 
  • Supreme Court Justices Hugo Black and Antonin Scalia were particularly noted for their originalist approach to constitutional interpretation. 
  • Today, originalism is typically associated with conservative political views.



Originalism Definition and History  

Originalists—advocates of originalism—believe that the Constitution in its entirety has a fixed meaning as determined when it was adopted, and cannot be altered without a constitutional amendment. Originalists further believe that should the meaning of any provision of the Constitution be considered ambiguous, it should be interpreted and applied based on historical accounts and how those who wrote the Constitution would have interpreted it at the time.

Originalism is usually contrasted with “living constitutionalism”—the belief that the meaning of the Constitution must change over time, as social attitudes change, even without the adoption of a formal constitutional amendment. Living constitutionalists believe, for example, that racial segregation was constitutional from 1877 to 1954, because public opinion appeared to favor or at least not oppose it, and that it became unconstitutional only as a result of the 1954 Supreme Court decision in Brown v. Board of Education. Originalists, in contrast, believe that racial segregation had been forbidden since the adoption of the Fourteenth Amendment in 1868. 

While it has evolved over time, modern originalist theory agrees on two propositions. First, almost all originalists agree that the meaning of each constitutional provision was fixed at the time that provision was adopted. Second, originalists agree that judicial practice should be constrained by the original meaning of the Constitution. 

Contemporary originalism emerged in the 1970s and 1980s as a response to what conservative jurists perceived to be the activist liberal rulings of the Supreme Court under Chief Justice Earl Warren. Conservatives complained that driven by the “living Constitution” theory, judges were substituting their own progressive preferences in place of what the Constitution allowed. In doing so, they reasoned, judges were rewriting, rather than following the Constitution, and effectively “legislating from the bench.” The only way to prevent this was to mandate that the Constitution’s operative meaning had to be its original meaning. Thus, those who endorsed this constitutional theory began calling themselves originalists. 

Associate Justice of the Supreme Court Hugo Black was particularly noted for his originalist approach to constitutional interpretation. His belief that the text of the Constitution is definitive on any question requiring judicial interpretation gained Black a reputation as a “textualist” and as a “strict constructionist.” In 1970, for example, Black refused to join in the attempts of other Court justices to abolish capital punishment. He argued that references to the takings of “life” and to “capital” crimes in the Fifth and Fourteenth Amendments made approval of the death penalty implicit in the Bill of Rights. 

Supreme court Justice, Huge L. Black.
Supreme court Justice, Huge L. Black. Bettmann / Getty Images

Black also rejected the widely held belief that the Constitution assured a right of privacy. In his dissent from the Court’s decision in the 1965 case of Griswold v. Connecticut, which confirmed a right of marital privacy in invalidating a conviction for the use of contraceptives, Black wrote, “It belittles the Fourth Amendment to talk about it as though it protects nothing but ‘privacy’ ... ‘privacy’ is a broad, abstract, and ambiguous concept ... The constitutional right of privacy is not found in the Constitution."

Justice Black criticized judicial reliance on what he called the “mysterious and uncertain” concept of natural law. In his view, that theory was arbitrary and gave judges an excuse to impose their personal political and social opinions on the nation. In that context, Black believed fervently in judicial restraint—the concept of judges not injecting their preferences into legal proceedings and rulings—often scolding his more liberal colleagues for what he saw as judicially created legislation.

Perhaps no Supreme Court justice has been better remembered for his efforts in promoting the theories of constitutional originalism and textualism than Justice Antonin Scalia. Before Scalia’s appointment to the Court in 1986, the legal community had largely ignored both theories. In deliberations, he often succeeded in convincing his colleagues that taking the text of the Constitution literally best respected the democratic process.

Many constitutional scholars consider Scalia to have been the Court’s most persuasive voice of the “strict constructionists,” justices who believe it to be their sworn duty to interpret the law rather than make it. In some of his most influential opinions, he railed against the “living constitution” theory as means of allowing unelected members of the judicial branch to bypass democratic processes in enacting new laws while leaving the legislative and executive branches accountable to the people.

Especially in his dissenting opinions, Scalia seemed to be warning the American people of the dangers of non-literal and ever-changing interpretations of the Constitution. For example, in his dissent to the Courts majority decision in the 1988 case of Morrison v. Olson, Scalia wrote:

“Once we depart from the text of the Constitution, just where short of that do we stop? The most amazing feature of the Court’s opinion is that it does not even purport to give an answer. Evidently, the governing standard is to be what might be called the unfettered wisdom of a majority of this Court, revealed to an obedient people on a case-by-case basis. This is not only not the government of laws that the Constitution established; it is not a government of laws at all.”

In the 2005 case of Roper v. Simmons, the Court ruled 5-4 that the execution of minors violated the prohibition of “cruel and unusual punishment” found in the Eighth Amendment. In his dissent, Scalia excoriated the majority justices for not basing their decision on the original meaning of the Eighth Amendment, but on the “evolving standards of decency of our national society.” He concluded, “I do not believe that the meaning of our Eighth Amendment, any more than the meaning of other provisions of our Constitution, should be determined by the subjective views of five Members of this Court.” 

Originalism Today 

Originalism is now well established, with most of the justices on today’s Supreme Court expressing at least some agreement with its basic theories. Even Justice Elena Kagan, considered to be one of the Court’s more liberal justices, testified at her Senate confirmation hearing that these days “we are all originalists.”

Most recently, the theory of originalism was prominently featured in the Senate confirmation hearings for Supreme Court Justices Neil Gorsuch in 2017, Brett Kavanaugh in 2018, and Amy Coney Barrett in 2020. All three expressed varying degrees of support for an originalist interpretation of the Constitution. Generally considered to be politically conservative, all three nominees warded off questioning regarding originalist theory from progressive Senators: Don’t originalists ignore the constitutional amendments adopted since 1789? Do originalists still interpret the Constitution as it applied to citizen farmers carrying muskets in horse-drawn carriages? How can originalism be justified today when the Founders weren’t originalists?

In support of the claim that the Founders were not originalists, Pulitzer Prize-winning historian Joseph Ellis has contended that the Founders viewed the Constitution as a “framework” intended to change over time, not as an eternal truth. In support of his thesis, Ellis cites Thomas Jefferson’s observation that “We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors.”

Despite originalism’s current prominence, modern political and social realities have largely prevented the concept from providing the conservative judicial interpretations envisioned by its strongest proponents, such as Justices Black and Scalia. Instead, legal scholars conclude that as it is practiced today, originalism does not eliminate but to an extent requires that the provisions of the Constitution are best interpreted to produce progressive or liberal outcomes. For example, in the 1989 case of Texas v. Johnson, Justice Scalia himself was compelled to vote against his personal political preference when he reluctantly joined a 5-4 majority in finding that a flag-burning is a form of political speech protected by the First Amendment. 

The Federalist Society

Today, one of the main defenses of originalism comes from Scalia along with Justice William Rehnquist, Judge Robert Bork, and the other core members of the then newly created Federalist Society. According to them, originalism’s greatest strength is its supposed definitiveness or “determinacy.” Scalia regularly excoriated various theories of the “living Constitution” concept as being hopelessly arbitrary, open-ended, and unpredictable. By contrast, Scalia and his allies argued that uniformly applying the Constitution’s original meaning was fundamentally a clear-cut judicial task

Established in 1982, the Federalist Society, is an organization of conservatives and libertarians that advocates for a textualist and originalist interpretation of the United States Constitution. It is also one of the United States’ most influential legal organizations. Its members emphatically believe that the province and duty of the judiciary to say what the law is, not what it should be.

The Heller Case

Perhaps no Supreme Court case better illustrates the convoluted ways in which originalism can affect today’s judiciary than the 2008 gun control case of District of Columbia v. Heller, which many legal scholars contend reversed over 70 years of legal precedent. This landmark case questioned whether a 1975 District of Columbia law restricting the registration, thus ownership, of handguns violated the Second Amendment. For years, the National Rifle Association had insisted that the Amendment established the “right to bear arms” as an individual right. Starting in 1980, the Republican Party began making this interpretation a part of its platform. 

However, Pulitzer Prize-winning historian Joseph Ellis, a biographer of several of the Founders contends, the Second Amendment, when written, referred only to service in the militia. The Militia Act of 1792 required each able-bodied male American citizen to obtain a firearm—specifically “a good musket or firelock”—to facilitate their participation in the “well regulated militia" as described in the Amendment. Thus, Ellis argues, the original intent of the Second Amendment was an obligation to serve; not an individual right to own a gun. In the 1939 case of United States v. Miller, the Supreme Court, in ruling that Congress could regulate the ownership of sawed-off shotguns, similarly asserted that the Founders had included the Second Amendment to ensure the effectiveness of the military. 

In D.C. v. Heller, however, Justice Scalia—the self-avowed originalist—led a 5-4 conservative majority in meticulously detailing the history and tradition of the Second Amendment at the time of the Constitutional Convention to conclude that the Second Amendment established an individual right for U.S. citizens to possess firearms. In his majority opinion, Scalia wrote that the Founders could have rephrased the Second Amendment to state that, “Because a well regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.”

While Scalia would later describe his majority opinion in Heller as “my masterpiece,” many legal scholars, including Joseph Ellis, contend the opinion represented revisionist reasoning, rather than true originalism.

Political Implications 

While the court system is expected to be immune from politics, Americans tend to view judicial decisions involving interpretations of the Constitution as having been influenced by liberal or conservative arguments. This tendency, along with the injection of politics into the judicial branch, can be attributed to the fact that U.S. presidents often appoint federal judges they believe—or expect—will reflect their personal political views in their decisions.  

Today, originalism in constitutional interpretation is typically associated with conservative political views. Considering the history of modern originalist theory and constitutional politics, this is understandable. While originalist arguments have a long history, politically motivated originalism emerged as a response to the liberal constitutional decisions of the Warren and Burger Courts. Many judges and legal scholars argued that conservative justices on the Warren and Burger Courts had not only misinterpreted the Constitution but had also acted illegally in making their rulings. 

These criticisms reached a climax during the Ronald Reagan administration, the founding of the Federalist Society, and the evolution of the current conservative legal movement that embraces originalism as its foundation. As a result, many conservatives echo originalist arguments, naturally leading the public to associates originalism with conservatives in both electoral politics and the judicial process. 

President Ronald Reagan talking to Supreme Court Justice nominee Antonin Scalia in the oval office, 1986.
President Ronald Reagan talking to Supreme Court Justice nominee Antonin Scalia in the oval office, 1986. Smith Collection / Getty Images

The current dominance of originalism in politics does not reflect the “right or wrong” of its underlying judicial theory but instead depends upon its capacity to rally aroused citizens, government officials, and judges into a broad-based conservative political movement.

Progressives often argue that rather than a means of reaching well-reasoned constitutional interpretations, originalism is too often used as an “excuse” for reaching politically conservative results in court. The true goal of originalists, they argue, is to achieve a set of constitutional doctrines that appeal to conservative politicians and public interest groups. 

In defense of the goals of the originalists, Edwin Meese III, Ronald Reagan's Attorney General, claimed that rather than seeking “to achieve a 'conservative judicial revolution' in substantive law,” Presidents Reagan and George H.W. Bush, by their Supreme Court appointments, sought to establish “a federal judiciary that understood its proper role in a democracy, respected the authority of the legislative and executive branches, and limited their judgments according to the role of the judiciary prescribed in the Constitution.” To that end, Meese contended, Reagan and Bush had succeeded. 

Support and Criticism 

Defenders of originalism argue that it constrains judges to follow the text of the Constitution even when they disagree with the decisions that the text commands. In a 1988 lecture explaining why he is an originalist, Justice Scalia said, “The main danger in (unrestrained) judicial interpretation of the Constitution is that the judges will mistake their own predilections for the law.”

In theory, originalism prevents or at least inhibits judges from making this error by restricting their decisions to the eternal meaning of the Constitution. In reality, however, even the most ardent originalist would admit that following the text of the Constitution is far more complicated than it sounds.

First, the Constitution is rife with ambiguity. For example, what exactly makes a search or seizure “unreasonable?” What or who is the “militia” today? If the government wants to take away your liberty, how much “due process of law” is needed? And, of course, what is the “general welfare of the United States?” 

Many provisions of the Constitution were vague and uncertain when they were drafted. This is partly attributable to the fact that the Framers realized that they could not predict the distant future with any certainty. Judges are limited to what they can learn about constitutional meaning be pouring over historical documents, or by reading 18th-century dictionaries.

Self-proclaimed originalist Justice Amy Coney Barrett herself seems to acknowledge this problem. “For an originalist,” she wrote in 2017, “the meaning of the text is fixed so long as it is discoverable.”

U.S. President Donald Trump (L) introduces 7th U.S. Circuit Court Judge Amy Coney Barrett as his nominee to the Supreme Court.
U.S. President Donald Trump (L) introduces 7th U.S. Circuit Court Judge Amy Coney Barrett as his nominee to the Supreme Court. Chip Somodevilla / Getty Images

Finally, originalism faces the problem of legal precedent. What should originalist judges do, for example, if they are certain that a longstanding practice—perhaps one that the Supreme Court itself declared constitutional in a prior ruling—violates the original meaning of the Constitution as they understand it?

After the War of 1812, for example, there was a robust debate among Americans about whether it was constitutional for the federal government to levy taxes needed to fund “internal improvements” such as roads and canals. In 1817, President James Madison vetoed a bill funding such construction because he believed it to be unconstitutional.

Today, Madison’s opinion is widely rejected. But what if a modern Supreme Court dominated by originalists were to conclude that Madison was correct? Would the entire system of federal highways have to be dug up? 

Sources

  • Ackerman, Bruce. "The Holmes Lectures: The Living Constitution". Yale University Law School, January 1, 2017, https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1115&context=fss_papers.
  • Calabresi, Steven G. “On Originalism in Constitutional Interpretation.” National Constitution Center, https://constitutioncenter.org/interactive-constitution/white-papers/on-originalism-in-constitutional-interpretation.
  • Wurman, Ilan, ed. “The Origins of Originalism.” Cambridge University Press, 2017, ISBN 978-1-108-41980-2.
  • Gorsuch, Neil M. “Why Originalism Is the Best Approach to the Constitution.” Time, September 2019, https://time.com/5670400/justice-neil-gorsuch-why-originalism-is-the-best-approach-to-the-constitution/.
  • Emmert, Steve. “Are We All Originalists Now?” American Bar Association, February 18, 2020, https://www.americanbar.org/groups/judicial/publications/appellate_issues/2020/winter/are-we-all-originalists-now/.
  • Wurman, Ilan. “The Founders' Originalism.” National Affairs, 2014, https://www.nationalaffairs.com/publications/detail/the-founders-originalism.
  • Ellis, Joseph J. “What Does the Second Amendment Really Mean?” American Heritage, October 2019, https://www.americanheritage.com/what-does-second-amendment-really-mean.
  • Whittington, Keith E. “Is Originalism Too Conservative?” Harvard Journal of Law & Public Policy, Vol. 34, https://scholar.princeton.edu/sites/default/files/Originalism_Conservative_0.pdf.
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Longley, Robert. "What Is Originalism? Definition and Examples." ThoughtCo, Oct. 28, 2021, thoughtco.com/originalism-definition-and-examples-5199238. Longley, Robert. (2021, October 28). What Is Originalism? Definition and Examples. Retrieved from https://www.thoughtco.com/originalism-definition-and-examples-5199238 Longley, Robert. "What Is Originalism? Definition and Examples." ThoughtCo. https://www.thoughtco.com/originalism-definition-and-examples-5199238 (accessed December 6, 2021).