The Volokh Conspiracy
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How Originalist Is the Supreme Court?
More than you might think—and it’s getting better all the time.
At last month's Federalist Society National Lawyers' Convention, which had the theme of "Originalism on the Ground," I got to speak on a panel addressing the question "How Originalist Is the Supreme Court?" My answer was an optimistic one: "more than you might think—and it's getting better all the time." As I argued,
Despite occasional denunciations from its perceived critics on the bench, originalism remains still the coin of the realm of legal argument. As Judge Posner (no friend to originalism) wrote decades ago, originalism was and is the orthodox mode of legal justification.
And despite occasional betrayals from the perceived friends of originalism on the bench, they too are doing better than one might think. But to see this we need to recognize three distinctions:
- The distinction between a rule, and its applications;
- The difference between pursuing the original law, and merely the original meaning;
- And the difference between originalism as a standard or as a method of interpretation—as a destination, or as a route.
When we draw these distinctions, we can see that originalism is in fact central to the practice of American courts, including the Supreme Court—and that they're no worse at it than at anything else they do.
Like the person who's a vegetarian not because they love animals, but because they hate plants, I take this view not because I'm an optimist about originalism, but because I'm a pessimist about everything else done by our courts.
For the rest (and a video of the event), see below!
So, let's start with the perceived critics of originalism.
I'm thinking here especially of the joint dissent in Dobbs, which strenuously criticized both the majority's history and its use of history to give content to current rights. Consider its surprise at the majority's focus on the status of abortion in the 1800s, even looking "back as far as the 13th (the 13th!) century."
But even the Dobbs dissenters gave originalism its due. In a crucial passage, they argued:
The Framers (both in 1788 and 1868) understood that the world changes. So they did not define rights by reference to the specific practices existing at the time. Instead, the Framers defined rights in general terms, to permit future evolution in their scope and meaning.
Note the claim being made here: not that we define rights in general terms, but that they did. That is a historical claim! If, as a historical matter, the due process clause wasn't defined to permit future evolution in its scope and meaning, then the argument of the Dobbs dissent is wrong. In other words, the dissenting Justices made themselves vulnerable to history, to refutation on historical grounds.
And this, in fact, is absolutely standard for arguments on both sides of the judicial "aisle." Consider the claim in Obergefell v. Hodges that
[t]he generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment … entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning."
The claim there is not about how we understand the Fourteenth Amendment, but how much they entrusted to future generations. This, again, is a historical question.
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Now, I recognize that all of these uses of history claim—whether accurately or not—that the Founders provided for certain kinds of change. But this is hardly surprising, when we distinguish between a rule and its applications.
As Chris Green has pointed out, beyond the first Congress, the original Constitution didn't spell out how many representatives each state would get; instead it made that number depend on an actual enumeration. And it didn't fix the size of the Senate: it said to take the actual number of states, and multiply by two. In other words, it laid down fixed rules, which were to be applied consistently to modern facts, unless the rules themselves were amended.
As Caleb Nelson has argued, the Founders recognized the danger of the dead-hand problem: but they thought of it as a drafting problem, not an interpretive problem. To use Hamilton's example, they decided not to fix in amber which goods the federal and state governments might tax, and instead to leave that up to future congresses and state legislatures to decide. This wasn't a license for judges to depart from the Constitution's fixed rules, but a decision to fix particular rules that allowed for certain kinds of lawful change.
And even today, it's common ground, among virtually all judges of virtually all stripes, that you can't go into court and say, "Yes, your Honor, our position is against the original Constitution, but we had a constitutional moment in 1937 that changed everything." You can't admit that the rule in the original Constitution is actually against you—that the rules laid down back then don't allow the outcome you want, even as applied to modern facts.
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Now, sometimes, of course, the Supreme Court doesn't base its decision on the rules as laid down back then in the text. Sometimes it bases its decision on rules found outside the text—like precedent, or waiver, or res judicata.
But that doesn't mean they're being bad originalists. There's a difference between the original meaning of the text and what originalists really ought to be after, which is the original law.
After all, what makes the text of the U.S. Constitution relevant, and not the text of Articles of Confederation or the Virginia Plan or the Report of the Committee of Detail, is that it was actually part of the law back then, and remains part of the law today.
But there are a lot of things that were also part of the law back then, which don't outrank or override the Constitution, but which coexist with and help implement other legal rules. (Think of the doctrines of the common law, the principles of equity, or the rules of admiralty and maritime law.)
And these doctrines and rules and principles can matter in constitutional litigation. So, if you have a knock-down originalist argument about the original meaning of the First Amendment, that doesn't matter, in our legal system, if you forgot to raise that argument in the district court. And that's not because the courts are being nonoriginalist, or are breaking the law. It's because they're obeying the law, and the law contains a common-law rule of waiver, which requires you to present your arguments at the earliest opportunity.
Likewise, you can have an excellent originalist argument, but lose because of res judicata, or because of issue preclusion, based on having brought and lost a prior case.
And you can also lose because of another common-law doctrine, stare decisis, instructs courts to leave a past decision in place. To borrow again from Caleb Nelson, the original rule of stare decisis seems to have been an epistemic rule—that if the evidence is 51-49, but a prior court made up of smart people went the other way, you should let it go, even if you think they were probably wrong.
But if they're demonstrably wrong, if you can explain the nature of their error and show what happened, then you do have to apply the correct rule and not what past judges have said about it—unless, according to that common-law rule, certain specific considerations of reliance apply.
If all this is right, then it's much easier to understand what's going on in the majority opinion in a case like Dobbs—which doesn't toss substantive due process in the dustbin of history, doesn't revive the Privileges or Immunities Clause, but simply keeps on going with the Glucksberg history-and-tradition test, reversing certain precedents (like Roe and Casey) in the name of obeying another. That's because, in Dobbs, both sides acknowledged the authority of Glucksberg, and neither side asked the Court to reconsider it. So it's hardly surprising, given the party-presentation rule that requires arguments to be presented on appeal, that the Supreme Court might have dutifully gone ahead and Glucksberged.
That doesn't mean that precedent overrides constitutional rules. It just means that, when a court sits down to decide an actual case, there are lots of legal rules in play, all of which can be consistent with the original law, and any lawful changes thereunder, even if they might direct a court away from discussing the original meaning of the text.
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But, of course, a court can still get the original law wrong. One might say that, more often than not, courts that seek out the original law do get it wrong. They are adhering, not to the Constitution of the United States, but to a much higher law, Sturgeon's Law, which is that "90% of everything is crap."
Judges, like everyone else, find it easy to slip into motivated reasoning—to assume that what the answer is and what the answer really ought to be are the same. They do this with the Constitution; they do this with statutes; they do this with treaties; they do this with the common law.
And, if you've read any law reviews lately, I'll let you in on a secret: academics do this too. But our errors are easy to ignore, because our errors drop stillborn from the press and get buried in the law reviews, while judges' errors decide actual cases. And especially when you have lots of precedents on the books, and lots of discretion on which cases you take or which arguments you consider, it's easy to avoid confronting your errors.
So how do we deal with this? The answer, I think, is to recognize that originalism is a standard, not a method—a destination, not a route.
As Judge Oldham mentioned this morning, there's no guidebook that says "Start with Source A, then move to B, and so on." And even if there were, it wouldn't necessarily avoid errors.
If James Madison quotes could ward off constitutional error, like garlic wards off vampires, then we'd want to see opinions littered with Madison quotes everywhere. But if citing the right sources doesn't guarantee that you're using them well—if the devil can cite Publius for his purpose—then we can't tell from the number of Madison quotes who the good originalists are.
Yet if we think about originalism as the destination, and not the route, we can see the glass as half full: we can understand and forgive the human frailty in reaching incorrect conclusions, but still pursue the goal of correct original analysis. We know that juries sometimes make mistakes, but we don't think that's an excuse to throw up their hands and say, "I dunno, he looks guilty to me." Likewise, we know that judges make mistakes, but that doesn't give us a reason for them to do anything other than grit their teeth and say, maybe next year.
Thank you.
