Originalism

The term “originalism” was coined in 1980 by Stanford law professor Paul Brest in a law review article criticizing the reliance by some conservative writers on the “intentions of the Framers.” Since there was no theory of originalism at the time, Brest reconstructed several versions of the theories, some of which he said were sensible and some of which had intractable difficulties. In particular, reliance on the Framers intent was impractical, he contended, because there were many framers and ratifiers with myriad sometimes conflicting intentions. This came to be called the “summing problem.” Modern originalist theory emerged in the 1980s and 1990s in response to Brest’s critiques.

Originalism can be summarized in a single sentence:

• The meaning of the Constitution remains the same until it is properly changed by amendment.

One normative justification for this proposition can be summarized in two sentences:

• The Constitution is the law that governs those who govern us; and
• Those who are governed by this law can no more change it on their own without going through the amendment process than we can change the laws they make to govern us without going through the legislative process.

Because there are now several competing originalist theories, it is best to think of originalism as a family of theories almost all of which agree on two ideas:

• The Fixation Thesis: the meaning of the constitutional text is fixed at the time each provision is framed and ratified.
• The Constraint Principle: judges and officials ought to be bound by the original meaning of the constitutional text.

Together, these claims stand in opposition to nonoriginalist theories—of which there are several—that assert a “living Constitution” has a meaning that evolves over time.

The Fixation Thesis is a descriptive or empirical claim about the way communication by written language works. The meaning of a writing is fixed when it is promulgated. If you read a letter written by an American in the 18^th century that referred to a “dollar,” it would be anachronistic to interpret the letter as discussing a Federal Reserve note of the kind we carry today in our wallets. There were no such notes in the 18^th century. It would instead be referring to a Spanish silver dollar, which circulated widely in the United States and contained a consistent quantity of silver. Reading an 18^th-century document referring to a “dollar” as referring to what we today mean by a “dollar” is a factual mistake, a misinterpretation.

The Fixation Thesis does not deny “linguistic drift”—that is, that language can evolve or change over time. The meaning of the word “dollar” is just one example of such drift. The Fixation Thesis claims instead that the communicative content of a document is the meaning it had when it was written and communicated to its intended audience. If the language has evolved or drifted since then, it is a mistake to attribute the new meaning to the original text. Of course, because the amendments to the Constitution were added over time, it is the meaning the words had at the time of their respective enactments.

Different theories of originalism disagree over what fixes the meaning of the text. Original intentions originalists believe the meaning is fixed by the “intentions of the Framers.” Original methods originalists claim it is fixed by the methods of interpretation in use when the writing was adopted, and that the Constitution was originally written in the “language of the law,” which would be understood by lawyers. The most prevalent theory today is original public meaning originalism, which maintains that, apart from some specialized legal terms of art, the meaning of the Constitution is that which a competent speaker of English would derive from its words given the context in which those words were used. In short, it is the information a member of the general public would take the words to communicate.

Because it is a descriptive claim, the truth of the Fixation Thesis depends on the accuracy with which it describes the way language works. By contrast, the Constraint Principle is a normative principle that recommends how people ought to behave. It stipulates that constitutional actors—judges, legislators, executive officials—ought to adhere to the fixed meaning of the written Constitution at the time it was enacted. This is in contrast with “living constitutionalism” which views these constitutional actors as empowered to change or update the meaning of the Constitution to something that is better.

Because it is a normative claim, the truth of the Constraint Principle depends on the reasons why following the original meaning of a written constitution is normatively better than adhering to one of the competing theories of living constitutionalism. There are several good reasons, most of which are not mutually exclusive. The more reasons for taking a given action, the more confident we are that this is what should be done.

Perhaps the most prevalent normative justification for adhering to the original meaning of the Constitution is based on a collective theory of popular sovereignty and the idea of democratic legitimacy. As the Declaration of Independence affirmed, “governments are instituted among men, deriving their just powers from the consent of the governed.” The basic idea is that the original meaning of the constitutional text possesses democratic legitimacy because the Constitution was ratified by a democratic process that manifested the consent of “We the People.” Similarly, treating the Constitution as binding recognizes the sovereignty of We the People, because the Constitution was ordained and established by the people themselves. In contrast, living constitutionalism depends on the will of nine unelected Supreme Court justices.

A second normative justification is that provided by an appeal to the rule of law. The rule of law is important because it provides stability, predictability, certainty, publicity, consistency, and evenhandedness. If judges and officials are constrained by the original public meaning of the constitutional text, then the content of constitutional doctrine will be relatively stable and predictable.

At the time the Constitution was drafted, the Massachusetts Constitution distinguished between the rule of law and the “rule of men.” When we compare originalism with living constitutionalism, the contrast is between rule by the original public meaning of the constitutional text (law) and rule by majority vote of nine unelected justices (men and women). An originalist Supreme Court would decide cases on the basis of constitutional text, but a living constitutionalist Supreme Court ultimately decides on the basis of the preferences, moral beliefs, or political ideologies of the justices.

A third normative justification for originalism is based on ideas about judicial role and separation of powers. The Constitution vests the judicial power in the Supreme Court and such inferior courts as Congress establishes. The legislative (lawmaking) power is vested in Congress. The power of amendment is vested by the complex institutional arrangement created by Article V. Those versions of living constitutionalism that authorize the Supreme Court to update, revise, change, or amend the Constitution violate the separation of powers. The power of amendment is transferred from the Article V mechanism to the Supreme Court itself, which becomes a perpetual constitutional convention or a council of constitutional revision. Once this power is transferred to the Supreme Court, it can then give itself the legislative power and the executive power with respect to such topics and to such extent as the Supreme Court itself deems appropriate.

The concentration of judicial, executive, legislative, and amendatory power in a single institution is the polar opposite of the separation of powers. Giving the ultimate control of the legislative, executive, and amendatory powers to the Supreme Court is inconsistent with any plausible conception of legitimate judicial role. Rather than the Constitution serving as the law that governs those who govern us, living constitutionalism turns the Supreme Court into those who govern all and are governed by none.

Another normative defense of originalism is based on a concept of individual popular sovereignty that is premised on the concept of natural rights. This approach rejects the concepts of collective popular sovereignty and democratic legitimacy while accepting the prior normative arguments about the rule of law and separation of powers. To these arguments it adds a concept of legitimacy based on the background or natural and inalienable rights that are retained by the peoples as individuals when forming government. This idea too was enunciated in the Declaration of Independence. After affirming as a self-​evident truth that all individuals are endowed with the unalienable rights to “life, liberty and the pursuit of happiness,” the Declaration then states: “To secure these rights, governments are instituted among men….”

At its core, this approach views the rule of law provided by the Constitution as a means to the end of instituting a governance system that is legitimate because it effectively secures the fundamental individual rights of We the People. To assess whether any constitution is legitimate or not, we must evaluate the lawmaking and enforcement processes it establishes. To identify these processes, we consult the original meaning of the text. Judges are bound to follow that meaning because they are required by the text to take an oath to follow it. We the People are bound by the laws that emerge from the legislative process if that process provides sufficient assurances that the resultant laws are both necessary to secure the rights of others and proper insofar as they do not violate the rights of the persons on whom the laws are imposed.

This approach does not deny that the Constitution—whether legitimate or not—and statutes enacted pursuant to the Constitution, comprise the positive law of the land. Instead, it holds open the question of whether statutes enacted pursuant to the Constitution restricting the liberties of the We the People are binding in conscience on us. According to this approach, whether the Constitution is legitimate depends not on how it is adopted, but on the substance of what it says. And the meaning of what it says is the original meaning that was fixed at the time of its enactment.

If that original meaning, when followed, is not good enough to provide assurances that the laws imposed on the people are both necessary and proper, then the people would have no moral duty to follow those laws. They would adhere to these laws solely because they seek to avoid the punishment that would be imposed for breaking them. On the other hand, if the original meaning of the Constitution does provide a law-​making process ensuring that laws enacted are both necessary and proper, then there is a general moral duty to obey the law even if some particular law may be unjust. This would be so because everyone has a moral duty to respect the rights of others and there is therefore a duty to obey a law that is necessary to accomplishing this. A law-​making process that vets all laws to ensure they do not violate rights provides a prima facie or defeasible reason to obey any particular law that has been so vetted.

Libertarians are especially drawn to this last justification for originalism if they believe that the original meaning of the Constitution—as amended—is sufficiently protective of the individual rights that define liberty as conceived by libertarians. To this they would add that adherence to the rule of law and to the separation of powers that originalism facilitates is vital to the protection of our individual rights from arbitrary government infringement.

But not all libertarian legal scholars are originalists. Some accept the criticisms of originalism that have developed alongside the development of originalism as a theory. For example, the criticism that original meaning does not provide enough information to resolve all cases or controversies. These libertarians tend to adopt living constitutionalist methods to read the Constitution in the most liberty-​protective way. The originalist response to these libertarians would rest on the deficiencies of living constitutionalism generally and why the criticisms of originalism are unsound.

Libertarians who are originalists have tended to oppose what is called “judicial restraint” and have embraced what is called “judicial engagement.” Judicial restraint is the view that unelected, unaccountable judges should generally “defer” to the will of the people as manifested by their popularly elected representatives in the legislature. Judicial engagement is the view that independent judges are essential to holding other constitutional actors within their constitutional powers. As such, judges should reach their own independent conclusions about how the original meaning of the Constitution limits the powers of Congress and state legislatures along with federal and state executive branch officials.

This debate over the distinctive role of judges, however, should not be conflated with the debate over the proper way to identify and apply the meaning of the Constitution. Some advocates of judicial restraint tend to read the text in ways that allocate more discretion to legislatures than do advocates of judicial engagement. Both types of originalists, however, maintain that judges are obliged to follow the original meaning of the higher law provided by Constitution and should consider a statute that conflicts with that meaning to be void.