Let’s Get Original

Thanks to conservative political and intellectual success, originalism as a guiding judicial philosophy is here to stay.

By From the February 2010 issue

Thanks to two developmentsthe nomination of Sonia Sotomayor and the decision of the Supreme Court to hear the gun-rights case McDonald v. Chicago—the question of judicial philosophy has recently, once again, been in the news. The first of these developments united conservatives, whereas the second divided them.

Sotomayor, conservatives agreed, was a progressive jurist—a judge who shows insufficient deference to the text and meaning of the Constitution, preferring to interpret laws according to her own values. Case closed. The only remaining question is how much damage she and future Obama appointees can do.

McDonald, meanwhile, isn’t at all cut-and-dried for the right. The case builds on last year’s D.C. v. Heller, in which the Court struck down a gun ban in the nation’s capital, saying that the Second Amendment protects an individual right to keep and bear arms. This was itself controversial in conservative circles; some said the Supreme Court had overstepped its bounds, and should have left the issue to the elected branches of government. McDonald asks the question of whether the Second Amendment—which initially applied only to the federal government, including the government of Washington, D.C.—should also apply to state and local governments.

Both of these developments raise issues that go to the heart of the judiciary’s future. Yes, for right- wingers, Sotomayor is a setback, but she comes in the midst of a very significant resurgence of conservative jurisprudence—a resurgence that came about through both politics (Republicans appointed six of the Court’s nine current justices) and academic research. In some ways, particularly intellectually, the conservative approach to the law is stronger than ever.

McDonald, meanwhile, exposes fractures not only within conservatism, but within liberalism as well. Factions on both sides of the aisle disagree not only on whether but also on how the Court should apply the Second Amendment to the states.


FIRST, A WORD ON TERMINOLOGY. A “conservative” judge is not one who always votes to uphold conservative laws and to strike down liberal ones. Rather, when observers call a judge “conservative,” they typically mean that he is to some degree an originalist. That is, he believes that laws have reasonably definite meanings, set by the words within them, and that these meanings do not change over time. Originalists do not believe that the Constitution is “living,” and most originalists agree that judges should avoid looking beyond the text of enacted laws, except to learn the context and meaning of the laws themselves.

Originalism has come a long way in a very short time. During a speech at an American Spectator dinner in late 2008, Justice Samuel Alito noted that there has been an explosion of judges’ citing dictionary definitions from the eras when laws passed. This reflects a desire to understand what laws meant when the people, through their representatives, consented to them. Alito also noted that in Heller, both the majority opinion and the main dissent used originalist arguments. That is, the justices disagreed only on what the words of the Second Amendment meant to the generation of Americans that enacted it, and used a good deal of historical evidence in making their points.

To understand originalism’s rise, it helps to understand originalism’s history. In the 18th century and most of the 19th, originalism was the only game in town. The Supreme Court almost never struck down the actions of the other branches of government. When the justices made decisions, the reasoning was typically grounded in the text of the Constitution, sometimes with extra evidence of the Founders’ intentions from contemporary documents like the Federalist Papers.

In the decades leading up to the New Deal, the Court increasingly struck down federal and state laws. Often its reasoning involved the dubious doctrine of “economic due process”—the idea that the Fourteenth Amendment’s guarantee of “due process” guaranteed a right to freedom of contract, even though no such right is stated explicitly. In Lochner v. New York (1905), the most widely cited of these cases, the Court struck down a state law limiting the number of hours bakery employees could work.

These decisions sometimes impeded President Franklin Delano Roosevelt’s ambitions. But by this time academia had revolted against decisions like Lochner, and the Court slowly caved (thanks in no small part to FDR’s appointment of eight justices). On questions of economic policy, it let states regulate as they pleased. In other areas, the Court expanded its role in overseeing legislatures. It used the “due process” clause—ironically, in much the same way Lochner had—to “incorporate” the Bill of Rights to prevent the states, not just the federal government, from passing laws that curtail constitutional rights. This process had begun with 1925’s Gitlow v. New York, which incorporated freedom of speech, but picked up steam in the 1940s. For example, 1947’s Everson v. Board of Education prevented state-run schools from establishing religion.

In addition to incorporating enumerated rights, justices protected, usually on due-process grounds, a slew of rights that weren’t even mentioned in the Constitution. Starting in the 1960s, the Court found rights for birth control and abortion, and for criminals to be “Mirandized” before answering questions. The Court never became so bold as to admit it was making things up. Every decision was presented as flowing naturally from some part of the Constitution, or at least from the Constitution’s principles. But it’s undeniable that the document’s original meaning became less and less of a concern.

The most notorious example, of course, was 1973’s Roe v. Wade. The basic reasoning was that a state could not ban abortion without running afoul of “due process”—even if the state legislators went through the proper (or “due”) lawmaking process. Such a law violated the “fundamental” “right to privacy,” and thus its passage failed to provide “substantive” due process. Decisions leading up to Roe (in particular Griswold v. Connecticut, the birth-control decision) had recognized the privacy right, which supposedly had “roots” in the First Amendment; could be found in the Fourth, Fifth, and Ninth Amendments; lurked in the “penumbras” of the entire Bill of Rights; and even emanated from the “concept of liberty” underpinning part of the Fourteenth Amendment.


IT WAS AGAINST THIS TIDE that originalism swam. The academy produced some critics of judicial activism, and even some mild successes, almost as soon as the most controversial decisions started materializing. As Judge Douglas H. Ginsburg once pointed out at an American Enterprise Institute lecture, in 1966 then-professor Robert Bork offered an originalist analysis of the antitrust Sherman Act—the law’s drafters, Bork said, intended the law to protect consumers, not to further various social aims the way judges had interpreted it. The Supreme Court agreed. Professor Raoul Berger, a liberal, released Government by Judiciary in 1977, arguing that the Constitution requires judges to stick to the Framers’ original intentions, and that the Warren Court’s Fourteenth Amendment jurisprudence had strayed from those intentions.

In the 1980s, the interpretive method gained a high profile thanks to two of its backers: Edwin Meese III, Reagan’s attorney general; and Bork, who by this point had served as President Richard Nixon’s attorney general and whom Reagan appointed (unsuccessfully) to the Supreme Court. In 1982, the pro-originalism Federalist Society launched chapters at some of the nation’s premier law schools. As the New York Times later put it (in its typical unbiased fashion), the Society quickly became a “shadow conservative bar association, planting chapters in law schools around the country that served as a pipeline to prestigious judicial clerkships.”

It was tough going, though. “For many years, the Constitution was hardly mentioned in constitutional law classes, let alone read,” Meese, now chairman of the Center for Legal and Judicial Studies at the Heritage Foundation, remembers. “I gave a speech on originalism, and I mentioned that in the leading constitutional-law casebook, the Constitution itself wasn’t involved until Appendix H. I got a letter from the professor who’d written it, and he said, ‘I wanted to let you know that in the next edition, I’m moving the Constitution up to Appendix A.’”

But political success led to academic recognition. With Meese and Bork national figures, and with Antonin Scalia fast becoming an influential member of the Supreme Court—and an increasingly public defender of originalism—the importance of understanding originalism was clear to anyone who wanted to practice constitutional law. Professors investigated the histories of various constitutional provisions, providing a foundation for originalist arguments. Law students were taught originalist philosophy, even if professors continued to cast it in a negative light. And most important, originalism’s defenders refined the theory in response to its critics, moving originalism onto firmer ground. Princeton law professor Keith Whittington writes that these adjustments created a “New Originalism.”

Adherents to the “Old Originalism,” such as Berger, had often focused on original intent: what the writers of a given law meant to do. The obvious counterargument was that it is impossible for us to read the minds of the dead—and even if we could, we might find that different drafters wanted different things from the same laws. In response, many originalists, including Scalia, began emphasizing laws’ original public meaning instead. The idea was that it didn’t matter what the Framers subjectively wanted; they passed laws made up of words, and at that time, those words had specific, objective meanings. One can ascertain these meanings by consulting contemporary writings, particularly dictionaries.

“The ‘New Originalism’ is much less interested in reining in the judiciary than in getting the Constitution right—even where the meaning of the Constitution would authorize greater judicial review, or constrain Congress or the president,” says Randy Barnett, a legal theory professor at Georgetown University and author of Restoring the Lost Constitution (Princeton University Press, 2005). For example, New Originalists often decry how Congress has used its right to “regulate commerce…among the several states” to justify just about any law it feels like passing—and also decry that the Court has let Congress get away with it.

These changes helped originalists build on the momentum they’d gained in the 1980s. Though the Rehnquist court of the 1990s can’t be considered originalist on the whole, many opinions—including some by centrist and liberal justices—made arguments based on the original intent or meaning of the Constitution, writes history professor Johnathan O’Neill in Originalism in American Law and Politics (John Hopkins University Press, 2007).


DID SUCCESS COME WITH A COST? For those who think courts should defer to the elected branches of government—even, sometimes, when those branches exceed their constitutional powers—the answer is yes. These critics are skeptical of “judicial supremacy,” the idea that the Supreme Court gets the final say on interpreting the Constitution.

In this view, when mainstream originalists supported the majority’s interpretation of the Second Amendment in Heller, they had made a 180-degree turn: they used to protest when the Court struck down democratically enacted laws such as abortion bans, but here they were asking the Court to strike down the elected D.C. government’s handgun ban. (For many New Originalists, the difference is that the Constitution explicitly protects the right to keep and bear arms, but says nothing about abortion.)

True, critics-from-the-right of Heller often sided with the dissent’s originalist analysis over the majority’s— they agreed that the Second Amendment, interpreted according to its Founding-era meaning, did not create an individual right to keep and bear arms. But the deeper criticism they made was that even if the majority’s interpretation of the Second Amendment was correct, there are reasons the Supreme Court should not have enforced this interpretation against another branch of government. For example, in Harvie Wilkinson’s Virginia Law Review article “Of Guns, Abortions, and the Unraveling Rule of Law,” three of the four anti-Heller arguments given are “descending into the political thicket,” “ignoring the legislature’s strengths,” and “disregarding federalism’s virtues.”

Matthew J. Franck, a Radford University political science professor and Heller critic, has vigorously supported a strict definition of judicial restraint; he’s the author of Against the Imperial Judiciary (University Press of Kansas, 1996). Franck does see the Constitution as a document granting Congress specific and limited powers, and he admits that Congress frequently exceeds those powers. The rub? “For me, one of the most under-examined questions in originalism today is, What was the original understanding of the scope and authority of judicial power?” Franck says. “We’re liable to believe that every breach of the Constitution is somehow fit for judicial invalidation.”

Franck advances a thesis that he admits sounds harsh and a little paradoxical: According to the Constitution, the executive and legislative branches can get away with some violations of the Constitution. The text of the document does not grant courts the right to nullify the acts of other branches of government, and again, courts rarely did so during America’s first century of existence.

Of course, New Originalists read the Constitution and its history as being much more friendly to judicial review than Franck does. They point out that Hamilton talked about judicial review in the Federalist Papers, for example, and that Marbury v. Madison laid the groundwork for at least some judicial review only a decade or so after the document’s ratification.

And as a practical matter, critics have pointed out, when Congress, states, and the president get to decide whether their own actions are constitutional, it’s akin to letting the foxes guard the henhouse. Franck replies to this line of reasoning thus: “Everybody who believes the judiciary is or ought to be the broad-ranging and final authority on every constitutional question is ignoring the fairly routine violations of the Constitution by the judiciary. By my reckoning, the Supreme Court violates the Constitution four or five times a year.”


SOME ON THE LEFT have had a very different reaction to modern originalism: They’ve not quite accepted it, but they have made it their own. These liberals often concede that the Court’s excesses in the ’60s and ’70s don’t square with the Constitution’s original meaning, but they add that the Court could have expanded citizens’ rights in a way that was constitutional. Specifically, they say that the Fourteenth Amendment’s “privileges or immunities” clause—“no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States”—provides a better excuse to do this than the guarantee of “due process” does.

Their main argument is that the Slaughter-House Cases (1873), decided soon after the Fourteenth Amendment passed, interpreted the “privileges or immunities” clause too narrowly. The majority decided that the clause “did not create additional rights, it merely required states to apply [their] laws equally to non-state residents as well as state residents.” Since then, the clause has been essentially meaningless. But correctly interpreted, these liberals say, the clause not only requires full incorporation of the Bill of Rights (as opposed to the “selective” incorporation achieved thus far under “due process”), but might protect things like abortion and gay rights too.

This reasoning, at least regarding the incorporation of enumerated rights, is far from implausible, and even some on the right share it. Justice Clarence Thomas implied such a view in a 1999 dissent, writing that “the demise of the Privileges or Immunities Clause has contributed in no small part to the current disarray of our 14th Amendment jurisprudence” and that he’d be willing to reconsider the clause’s meaning. Even when it comes to unenumerated rights, many libertarian-leaning originalists (such as Barnett, who would like to see the Court protect everything from sodomy rights to economic freedom) share the progressive-originalist view.

Which bring us to McDonald, the gun-rights case now before the Court. The case specifically asks the Court to consider the “privileges or immunities”- based case for incorporation. There’s no way to tell what, if anything, will come of this—it seems likely that the Supreme Court will incorporate the Second Amendment, but it could do so on familiar “due process” grounds (as the Ninth Circuit already did in a different case) rather than head in this brave new direction.

If the Court does reconsider the “privileges or immunities” clause on originalist grounds, it will likely have to do so over a series of cases, during which it will face many thorny questions. What economic and civil rights does the clause protect? Can one determine those rights by researching what the term of art “privileges or immunities” was commonly understood to mean when the Fourteenth Amendment passed, or must one simply guess? Should the Court overturn old “due process” decisions and replace them, when appropriate, with “privileges or immunities” ones? Or should the new rights just build on the old?

Perhaps what should concern conservative originalists most is that, even if these cases put the “privileges or immunities” clause back in its rightful place, future courts could stretch it the same way they stretched the due-process clause. “Privileges or immunities” could give a progressive court a whole new avenue to run down when it came to inventing rights.


HOWEVER THINGS PAN OUT, originalists will have much more sway than they had a few decades ago. Obama’s liberal appointees will likely replace other liberal judges. Liberal John Paul Stevens, born in 1920, is the Court’s oldest member by more than a decade; Ginsburg and Breyer were born in the 1930s (though so were Scalia and moderate Kennedy). Roberts and Alito were born in the 1950s, Thomas in 1948. It seems most likely that Obama will preserve liberalism on the Court— possibly for decades, if he replaces several more old liberals with young ones—but probably won’t be able to roll back the gains of originalism.

It’s also important to remember the lower federal courts, which to varying degrees have adopted the Court’s proclivity for ignoring the Constitution’s meaning. Lower courts have significant power, and could soon be home to some important battles. There is a push for courts to recognize gay marriage, though up to this point only state (not federal) courts have done so. It will probably fall to the lower courts to untangle some of the knots McDonald leaves. Obama’s appointments to lower federal courts could determine the policies governing entire regions.

Aside from filibustering particularly egregious nominees, there’s not much originalists can do about judges while the Obama administration is in office. They can be grateful, however, for the work various scholars and judges have done to bring the philosophy back.

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About the Author
Robert VerBruggen is an associate editor at National Review. You can follow his writing here.