Recent Supreme Court rulings that Roe v. Wade overthrew and expanded gun rights in the US, leading some legal experts to declare the “triumph of originality”.
In fact, the court’s views to a large extent reflect original methodology. In New York State Rifle & Pistol Association Inc. v. Bruen, a second amendment case, sought the majority opinion for “the public understanding of the right to own and carry weapons in both 1791 and 1868.” And in Dobbs v. The Jackson Women’s Health Organization surveyed the majority of whether the right to abortion is “rooted in our nation’s history and tradition.”
Indeed, of the nine judges on the bench, at least five are now self-proclaimed “originals,” with others seemingly sympathetic to the interpretive method. Despite – or perhaps due to – the increasing prominence of originality, misconceptions about this theory of constitutional interpretation have swirled: Is not originalism self-destructive because the founders were not original? Do not original people ignore the amendments written after 1789? Do original people think the Constitution only applies to horse-drawn carriages and musketeers?
And, myths aside, are the Brown and Dobbs’ views really original?
As a constitutional law professor, an original author, and the author of “A Debt Against the Living: An Introduction to Originalism” and “The Second Founding: An Introduction to the Fourteenth Amendment,” I would like to ask some frequently asked questions about originalism answered – and to unmask some of the myths.
What is originality?
Originalism is the idea that we should interpret the Constitution with its original meaning. But what exactly is the “original meaning” of the Constitution?
Some original people argue this is the meaning as understood by those who ratified the Constitution in the various state conventions, or the public who elected those ratifiers. Others say it is the understanding of a reasonable, well-educated reader. Still other scholars claim that the Constitution was written in legal language and must be interpreted with its original “legal” meaning. With this approach, for example, the term “ex post facto laws” probably refers only to retrospective criminal laws and not to all retrospective laws.
Although critics of originalism make much of this intra-original controversy, the reality is that all of the above approaches usually lead to the same answer.
Originals believe that the Constitution is a public mandate to legal officials, just as statutes are public instructions to citizens and to officials. As such, the Constitution must be interpreted in the same way that you would interpret any communication intended as a public mandate.
For example, if you get a recipe for apple pie from 1789, you will interpret it with a public meaning and not with a secret or esoteric meaning that you can use to interpret, for example, a Socratic dialogue. Otherwise, the recipe would be an ineffective instruction. And you will also interpret the recipe with its original meaning, that is, the meaning that its creator intended to convey.
However, this does not mean that we should follow the apple pie recipe. Maybe the recipe has some fatal flaw or it just does not meet modern taste. In that case, we can edit the recipe or maybe drop it. But doing so does not change what the recipe actually means.
The Constitution works in the same way: As a public order, its meaning is the original public meaning. Whether and why the Constitution is legal and binding so that we must follow it are separate questions – questions that are deeply disputed even among original people.
Were the founders original?
Some critics claim that originality is self-destructive because the founders themselves were not original. They say originality is just an invention of the 1970s and 1980s, a response to judicial activism of the Warren Court (1953-1969). This is false.
All the founders were originals. In 1826, James Madison wrote: “In the exposition of laws, and even of Constitutions, how many important errors can be caused by mere innovations in the use of words and phrases, if not controlled by a repetition of the original and authentic meaning attached to them. ” Chief Justice John Marshall wrote in 1827 “that the intent of the [Constitution] must triumph; that this intention must be gathered from his words; that its words should be understood in the sense in which they are generally used by those for whom the instrument was intended. ” Daniel Webster argued in 1840 that the Constitution should be interpreted in its “ordinary and popular sense – in that sense in which the people were supposed to understand it when they ratified the Constitution”. And as David P. Currie explained in his monumental study “The Constitution in Congress”, between 1789 and 1861 “almost everyone” in Congress was “an original”.
Does the original Constitution apply to modern circumstances?
Natural. That’s why the First Amendment’s protection for freedom of speech on the internet applies. That’s why the fourth amendment’s ban on unreasonable searches and seizures applies to GPS devices that police officers put on cars. And, yes, that’s why the Second Amendment applies to more than just musketeers. In other words, originals are not bound by the original expected applications of the Constitution’s text. They are bound by the original meaning of the text, and that meaning can and does apply to new and changing factual circumstances.
Are all Supreme Court justices original people?
Judge Elena Kagan, who was appointed by President Barack Obama in 2010, announced during her confirmation hearing that “we are all original now.” She meant that all judges take the text of the Constitution more seriously than before. However, only four judges – Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett – are self-proclaimed original writers. Judge Samuel Alito considers himself a “practical originator.” He and Chief Justice John Roberts both follow a more pragmatic approach, giving more weight to precedents and consequences. Elena Kagan and Sonia Sotomayor believe the Constitution can and must evolve over time. As for the newly appointed Ketanji Brown Jackson, she declares that she is bound by the original public meaning of the text, but adds that the main provisions of the Constitution are fairly open, suggesting that originality, for her, can sometimes be dynamic interpretation require.
Do Original People Ignore Reconstruction? Reject them Brown v. Board?
A more recent misconception is that original people ignore all the amendments written after 1789, the year the Constitution came into force. This is a strange critique, as it would include the Bill of Rights, which was only added in 1791. Originals are bound by amendments to the Constitution duly made by the amendment process, including the 14th Amendment, which was ratified in 1868. .
This is also why originality Brown v. Board of Education, the landmark school desegregation decision, can and does justify. The 14th Amendment’s privilege or immunity clause – which stipulates that no state may make or enforce any law that shortens the privileges or immunities of U.S. citizens – was an anti-discrimination provision regarding civil rights under state law. If education is a civil right – and it is – then once it is recognized that segregation was never about equality, but rather to keep one race of Americans subordinate to another, segregated public schools violate the Constitution, of course.
Are Bruen and Dobbs original opinions?
The 14th amendment brings us to the question of whether the court’s Brown and Dobbs opinions are original, as alleged.
To answer that question, a quick background is in order. Historically, the Bill of Rights has bound only the federal government. This may indicate that the Second Amendment should not apply to a matter involving a law in New York.
But since the early 20th century, the Supreme Court has “incorporated” the Bill of Rights against the states, such that now almost every right in the Bill of Rights applies equally to both the federal and state governments.
Original scholars believe almost universally that “incorporation” was correct as a matter of the 14th Amendment’s privileges or immunity clause. However, that clause was effectively destroyed by the Supreme Court in 1873. Thus, today’s Supreme Court “incorporates” the Bill of Rights through the proper process clause and more specifically through the concept of “substantive due process” – the idea that some rights are so fundamental that no state they should not violate.
Yet original people largely agree that the proper process clause did not have such a “substantive” component and that states can in fact take away rights as long as they provide adequate “process”. Unlike Judge Thomas, however, the Supreme Court is unwilling to reconsider its incorporation precedents. And until the court does that, its views that the Bill of Rights applies to the states are technically not fully originalistical. Indeed, some scholars even claim that incorporation is completely contrary to originality.
It’s even harder to celebrate Dobbs with originality. Most original authors agree that “substantive due process” is especially problematic when applied to unwritten rights. Roe v. Wade was such a substantial proper process decision: There, the court identified a right to abortion that was nowhere written in the Constitution and ruled that despite that fact, no state can fully prohibit that right. In Dobbs, the Supreme Court overturned Roe, but it did not reject the substantive proper process; it merely limited the doctrine to those written or unwritten rights “deeply rooted in history and tradition”. It certainly corresponds more to originality, although it is not entirely originality.
Is originality just a conservative prank?
This brings us to the final misconception: Is not originality just a rationalization for conservative results?
The short answer is no. Originally take the bitter with the sweet. They may not like federal income tax or the direct election of senators, but they accept the original meaning of the 16th and 17th amendments on those points. Moreover, indigenous peoples often believe – whether about abortion or same-sex marriage, for example – that controversial political and moral issues must be resolved through the democratic, legislative process, a process that can lead to progressive, libertarian or conservative outcomes.
Editor’s note: This is an updated version of an article originally published on October 24, 2020.