The Year Originalism Became a Four-Letter Word

 By Eric Segall

The Justices are done hearing cases until January so it is time to take stock in what has been a  monumentally important year at the Supreme Court. There's a lot to talk about but this post focuses on one significant point: this was the year originalism became a four-letter word. 

In June of this year, the Supreme Court of the United States issued four landmark decisions, all decided by 6-3 partisan votes. The Justices returned the issue of abortion to the states (and potentially Congress), dramatically enlarged gun rights, and weaponized the free exercise clause to require Maine to support parents of children in religious schools and to forbid a school district to punish a public-school football coach who on several occasions prayed at the fifty-yard line while he was still responsible for his students. All four Justices who identify as originalists joined (or authored) each decision, including Justice Alito, who used to mock originalism but now seems to embrace it.

The first two decisions canvassed history while the third and fourth barely mentioned the topic. None of the decisions, however, was originalist.

In October of this year, during the oral arguments in the Court’s two affirmative action cases it will decide this term, the so-called originalists seemed barely interested in the original meaning of the Constitution, and it is likely the June decision will barely mention it. Similarly, in December, there was not a single question about the first amendment’s original meaning in a huge case involving a wedding web designer’s refusal to sell those services to same-sex couples.

The Justices say they are originalists, but they simply are not. They should stop trying to deceive the public.

Let’s start with the Second Amendment case New York Pistol & Rifle, Ass’n v. Bruen, which may well be the least originalist Supreme Court opinion in history (a bold claim but bear with me). There is a substantial discussion of history in the opinion, but the Court’s actual mode of analysis could not be less originalist.

Justice Thomas said that the only legitimate methods of constitutional interpretation for judges to use are text and history and that courts should not balance public policy concerns against the weight of asserted rights. The founding fathers, however, simply did not treat rights that way. Constitutional rights were subject to restrictions if policy concerns were substantial enough. As Professor Jud Campbell has written, almost everyone at the Founding (and before) thought “rights were not a set of determinate legal privileges or immunities that the government  could not abridge. … Rights…could be restricted by law to promote the good of the society.”

At the very least, the framers understood that judges always had to balance the reason for the law at issue with the strength of the asserted claim. Yet, Justice Thomas, writing for all the originalists, specifically rejected this mode of analysis universally accepted when the people ratified our Constitution. As I said above, Bruen may well be the most anti-originalist opinion in history.

The abortion decision, Dobbs v. Jackson Women’s Health, seems at first glance to be originalist because it relies so much on history, but it is not. Justice Alito canvassed sources dating back to the 13th century--long before America became a country and even longer before women were equal citizens under the law. Most originalists today, however, recognize that originalism, in the words of one of its strongest supporters, believe that “fixed original public meaning can give rise to different outcomes given changing beliefs about facts. [Originalism] does not require constitutional actors to adhere to false factual beliefs held by the drafters, Framers, ratifiers, or the public.” It is for this very reason that just about all originalists today accept gender equality under the law even though the original public meaning of the equal protection clause simply cannot support that view. 

There is no analysis in Dobbs, however, concerning the false factual beliefs of the people at the time that led to witch-burnings, husbands having the right to rape their wives, and the fact that when the 14th Amendment was ratified women were essentially the property of their husbands and did not have the right to vote. Most originalists would look at history with those “false factual beliefs” at least in mind. The Dobbs majority did not. Not surprisingly therefore, the majority held that women have no constitutional right to abortion.

More importantly, Dobbs turned on the meaning of the 14th Amendment’s demand that no state “deny to any person the due process of law.” As one commentator has observed:

The Dobbs majority treats the phrase as a legal term of art when it holds that, within the Due Process Clause, the term ‘liberty’ must refer either to one of the enumerated rights in the Bill of Rights, or to a right that is ‘deeply rooted in this Nation’s history and tradition….But all public-meaning originalists accept…that original public meaning is not decisive when words appear in a phrase that is a term of art….Dobbs does not examine the original public meaning of ‘liberty’ in the context of the Due Process Clause or in any other context.

And as Professor Noah Feldman argued:  

The Supreme Court in Dobbs was not even pretending to follow originalism. It was using a different interpretive approach, historicism, first described systematically by the German legal theorist Friedrich Carl von Savigny in 1814. The point of historicism is to draw on historical legal materials to evolve the law in the “spirit of the nation,” or Volksgeist. This historicism does not constrain judges nor make them neutral or objective. It empowers them to interpret history to make law in line with their own ideas about tradition.

So much for Dobbs being an originalist case.

The two important religion cases from last June spent almost no time on history or the original meaning of the free exercise clause. Both opinions simply discuss policy concerns and values, in apparent contradiction to Bruen. These two cases show quite clearly that the conservative justices will drop history and originalism altogether whenever doing so serves their political preferences. The Justices exhibited the same behavior at the oral arguments in the affirmative action and free speech cases this term. 

As the title of this essay reflects, this year the Supreme Court showed without any doubt what we have known for a long time: Originalism is a four-letter word. And that word is fake.