Originalism is a judicial philosophy which holds that laws should be interpreted according to their original public meaning. That is to say, what a reasonable reader—the average person with no vested interest causing them to skew the meaning—would have understood the law to mean at the time it was written. This judicial philosophy, advocated for by the late Justice Scalia and utilized by judges across the country, has been routinely misunderstood by politicians and pundits alike when debating the potential confirmation of judicial nominees and the judiciary as a whole.

Critics will often attack originalism by attacking the founders, or by saying that the Constitution is too old. They say that because the Constitution was written 240 years ago, it can’t possibly reflect the current values of our nation or be applicable to new technologies. During Justice Gorsuch’s confirmation hearing, Senator Dianne Feinstein asserted, “At the time of our founding, African Americans were enslaved. It was not so long after women had been burned at the stake for witchcraft, and the idea of an automobile, let alone the internet, was unfathomable. In fact, if we were to dogmatically adhere to originalist interpretations, then we would still have segregated schools and bans on interracial marriage. Women wouldn’t be entitled to equal protection under the law, and government discrimination against LGBT Americans would be permitted.” This argument is not only logically flawed. It misunderstands what originalism is.

    The United States Constitution is somewhat unique in its broad nature, and for this reason, so many of these questions of modernity are irrelevant. The Constitution does not contain specific provisions regulating cars or the internet. Instead, it describes the basic structure of our government, and what issues the federal and state governments may control. It speaks to regulating interstate commerce, the federal government’s ability to tax, and other such powers. The job of an originalist judge is to determine whether these new laws and issues fall within a reasonable reader’s understanding of what these provisions of the Constitution allowed at the time that they were written. Whatever opinions the founders would have had on these issues are irrelevant. What matters is what is written in the constitution, either by the founders or with subsequent amendments.

Similarly, the Constitution does not specifically speak to the issues of segregated schools, LGBT Americans, interracial marriage, or equal protection specifically for women. Instead, the 14th amendment says “nor shall any state […] deny to any person within its jurisdiction the equal protection of the laws.” Unless Senator Feinstein has unearthed some never-before-seen historical evidence that women were not considered to be included in the term “people” when the 14th amendment was ratified, her argument that an originalist interpretation of the equal protection clause does not cover them is absurd. For this same reason, the 14th amendment also protects LGBT and black Americans, because it protects all Americans.

Critics will say that the Constitution must change as the country has over the last 240 years. They’re right. The Constitution must change with the country, and it has changed with the country. In the last 240 years, the Constitution has been amended to guarantee voting rights for women and black people. It has been amended to guarantee equal protection under our laws and the abolition of slavery. It has been amended to institute term limits for President, directly alter the Electoral College twice, and make Senators elected instead of appointed. And there are efforts underway right now to amend it again, whether those efforts are to limit money in politics, impose term limits on Congress, regulate or ban abortion, end or reform the Electoral College, impose fiscal restraints on Congress, or a litany of other issues. The Constitution does change over time, but it changes through the elected representatives following the processes outlined in Article V of the Constitution, not through the whims of unelected judges who believe they know what is best for the country.

A commitment to originalism is not contingent on complete support for the founders, nor even complete agreement with the Constitution as it exists today. A commitment to originalism is a commitment to the rule of law, and to the underlying principles of our constitutional republic as to what the function of a judge is. It is an understanding that the legislatures make the law, and the judiciary merely interprets the law in specific circumstances, with respect to specific facts. It is the recognition that if the society as a whole changes, they must choose to reflect that change in their elected leaders, and not that an un-elected judge may take that action on their behalf. Just as much as the Constitution is a product of 1787, it is a product of the Bill of Rights ratified in 1791, of the 14th Amendment ratified in 1868, of the 19th Amendment ratified in 1920, and of the 26th Amendment ratified in 1971. An argument against the founders is not an argument against originalism, because originalism is not about the founders. It is about the text.

Eric Wagner

Eric is a New York native and a Sophomore at Stony Brook University, where he studies economics and political science. He is a libertarian, and is currently the Vice President of his university’s College Republicans. Previously, Eric has interned at his town government, and he intends to pursue a degree in law.

Leave a Reply

Your email address will not be published. Required fields are marked *