In recent weeks, the judicial philosophy of originalism has been in the news thanks to the confirmation hearings of Justice Amy Coney Barrett. Many discussions of originalism, however, have caricatured its understanding of the judicial role. We hope to address these misconceptions by clearly defining originalism.
Simply put, originalism insists that judges interpret the Constitution based on the original public meaning of its text.
Although many associate the rise of originalism with figures such as the late Justice Antonin Scalia and the late Judge Robert Bork, their approach to interpretation traces its roots to the early years of American jurisprudence. In fact, the originalist view of the judge’s role finds expression in Chief Justice John Marshall’s observation in Marbury v. Madison that “it is emphatically the province and duty of the judicial department to say what the law is,” not what it ought to be. An originalist believes that a judge must interpret the law as it is written, regardless of their private opinions on the political issues at stake.
Originalists thus oppose so-called “living constitutionalism,” which holds that a judge should interpret the Constitution based on the changing values and norms of the people. In practice, originalists contend, this leads to rule by five unaccountable justices through judicial fiat. When judges ground their decision in anything but the text of the law, as it was understood when that law was passed, they improperly usurp the legislative power.
Many on the “right wing” of American politics adopt originalism because it resists Supreme Court decisions that have no basis in the constitutional text, like Roe v. Wade or Obergefell v. Hodges. Often, however, they conceive of originalism as nothing more than a means to reach their preferred political outcomes or to impose their own political theories on the Constitution.
Two common misconceptions stand out.
First, some on the right misuse originalism as an excuse for judges to impose their political and religious convictions by judicial fiat, thus substituting their views for the text of the Constitution. Just as the “living constitutionalists” enforce their private opinions under the guise of the will of the people (living in the present), these misguided originalists insist that “right wing” judges should enforce their private opinions under the guise of the will of the Founders (living in the past). This approach turns originalism into a cudgel to be used against their political opponents.
Properly understood, however, originalism demands that these private views be set aside in favor of the lawmakers’ vision, which judges merely interpret. What matters is not the judge’s opinion, nor the people’s opinion, nor even the opinion intended by the Founders except insofar as it informs those in the present about the public meaning of the law when it was written. Discovering this original public meaning of the law and adhering to it is difficult. As the late Justice Antonin Scalia said, “the judge who always likes the results he reaches is a bad judge.” But originalists possess the confidence that their decisions, no matter how much they dislike them, enforce the law as it was written. In so doing, they preserve political legitimacy by leaving the writing of laws in its proper branch, accepting the role of interpreter rather than legislator.
Second, some err on the opposite extreme. They mistakenly assume that, since originalism resists judicial activism that legislates from the bench, its guiding value must be judicial neutrality. This view tends toward legal positivism, the idea that laws are inherently neutral with respect to morality, and that judges must interpret the law accordingly.
This “neutralist” view creates a myth of an amoral American Founding, ignoring the express opinion of the Founders in the Northwest Ordinance that “religion [and] morality” are “necessary to good government.” It rejects the Founders’ shared commitment to natural law as the basis for a just political order by denying a legal role for the principles enshrined in the Declaration and the Preamble. Most importantly, it ignores what law is. Every law, however mundane, declares that some actions are wrong and others are not. Indeed, an adherence to the natural law requires an acknowledgment that law is not neutral, but rather has a moral aim.
Of course, this does not mean that every moral principle must be legally enforced, or even that every moral principle known by the natural law must be given legal expression. As Aquinas argued, “human laws do not forbid all vices . . . but only the more grievous vices . . . and chiefly those that are to the hurt of others, without the prohibition of which human society could not be maintained.” Consequently, the originalist understanding of law merely recognizes that every law shapes and reflects the morality of a society’s culture.
A proper understanding of originalism keeps the judiciary away from these two extremes. Any judicial philosophy that calls for a judge to decide based on their policy preferences, whether they be progressive, libertarian, or conservative, ignores the proper role of the judiciary in American government. But, at the same time, any judicial philosophy that ignores the moral purpose of the law ignores the Founders’ commitment to natural law as the foundation for every just legal order. The true originalist secures justice by enforcing the law as it truly is, not as he might wish it to be.
Connor T. Daniels is a senior studying history and politics.
Ryan Lanier is a senior studying history.