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Introduction

With Amy Coney Barrett’s confirmation, the Supreme Court now has a firm supermajority of Republican-nominated justices for the first time in over a decade. Although this almost certainly will affect how the Court will now decide on a host of crucial policy issues moving forward, from allegations of electoral fraud, to abortion, to gun rights, to constitutional issues arising out of the coronavirus lockdowns, many Republicans see Justice Barret’s nomination as the last frontier to effectuate meaningful political change given the ongoing and seemingly endless gridlock affecting both the Presidency and Congress. 

While it is true that the Court has for several decades now had a firm majority of justices selected by Republican presidents, some of the most landmark cases of the past five decades (i.e., Roe, Obergefell, and Sebelius, just to name a few)—often perceived as reaching the “liberal outcome” in terms of expanding substantive due process constitutional rights that went beyond the plain meaning of the text—were actually penned by Republican-appointed justices. The most notable of these decisions, Roe v. Wade, codifying the right to abortion, was written by Harry Blackmun, a Richard Nixon appointee. 

Relatedly, John Roberts, who was appointed as Chief Justice by President Bush in 2005, ruled that the Affordable Care Act’s individual mandate was a constitutional extension of the Tax and Spending powers of Congress. Additionally, Justice Kennedy, who was appointed to the Court by President Reagan in 1988, became, over the course of his tenure, perhaps the Court’s foremost advocate for LGBTQ+ rights, writing the majority opinions of Romer, Lawrence, and eventually, Obergefell, which legalized same-sex marriage in every state of the union. More recently, former President Trump’s pick, Justice Gorsuch, wrote the majority opinion of Bostock, which found that Title VII of the Civil Rights Act of 1964 prevented employment discrimination on the basis of sexual identity. 

Although it may be unfair to characterize each of these decisions as reaching the “liberal” outcome, it is true that the majority opinion in each was at odds with the conventional originalist interpretation of the Constitution. Since the 1980s, originalism, and its closely related cousin, textualism, have been among the most prominent interpretational theories employed by conservative or Right-leaning justices. Both originalism and textualism are theories that were arguably made most famous by the late Justice Antonin Scalia, and are now most orthodoxly upheld by Justice Clarence Thomas of the presently sitting Republican-nominated justices.

Broadly defined, both theories are concerned with interpreting the text of a law based on the plain meaning of its statutory language (textualism), which is sometimes better informed by the original intent of the statute’s framer if such intent is knowable (originalism). For example, a textualist understanding of Title VII would interpret the language “race, color, religion, sex, national origin” in line with the commonplace understanding of those words. In situations where a word or phrase might be ambiguous, originalism permits judges to reference the lawmakers’ understanding of the phrase at the time the law was enacted. If the meaning still remains unclear, an originalist understanding might also permit judges to occasionally reference the legislature’s intent of the law at the time of the law’s passage; or, in its broadest formulation, the statute’s understanding by “society” at large when it was passed. 

Hence, “sex” as used in Title VII is generally interpreted by originalists in binary terms—male or female—because in 1964 there was little thought of including transgendered persons under the statutory definition of “sex.” The underlying assumption behind this reasoning is that statutes acquire significance when their words have fixed meanings. Ambiguous interpretations of language subject to constant change, per this view, risk sowing discord among competing tribunals tasked with interpreting statutory language with possibly inconsistent meanings. If language remains suspended in a state of perpetual flux, taken to its logical extreme, it could disabuse statutory meaning of any true coherency. This was the crux of the analytical controversy behind the recent Bostock decision, when the originalist justices split in their various interpretations of the meaning of the word “sex.” Gorsuch, writing for the majority, applied a more functionalistic—which is to say, adaptable—reading of the word, giving “sex” the meaning it increasingly has in today’s common parlance, which is more expansive than the 1964 understanding. 

Bostock is an excellent case study of some of the theoretical assumptions underlying the textualist-originalist philosophy, and how particular areas of dispute that divide conservative justices underscore deeper philosophical, and even metaphysical, differences between them. Bostock is also valuable in helping to address some of the tenuous assumptions underlying originalist thought overall, and thus could be used to illuminate how originalism may be reformed, or perhaps even replaced entirely, to more directly respond to its critics’ charges that its proponents simply weaponize a thinly-veiled political expedient which is masked by academic or philosophical language to accord the theory apparent legitimacy.

The most foundational principle of textualism, as alluded to above, is that language only has meaning when it is clearly defined, which presupposes that its meaning generally remains fixed, or at the very least, changes slowly enough in order to provide ample prior notice to every tribunal of the designated understanding of a particular statutory text. While there are deeper metaphysical assumptions undergirding this hermeneutical framework, the principal assumption is that the world is only comprehensible if we have some reassurance that certain things, chief among these being language, are objectively true relative to some independent metric that exists in the world completely separate from mere subjective experience. 

Therefore, there is a principal requirement that certain things have fixed meanings independent of the subjective experiences of single interpreters. Thus, if “apple” today could mean “banana” tomorrow and “orange” on Thursday, the world would be totally incoherent. Instead of the risk of overlooking rights for particular individuals, no rights could be granted to anyone, since everything would be subjectively determined—in other words, susceptible to ever-changing relativistic understandings limited to the unique perspective of a single interpreter. The danger with this is that language could then be easily manipulated by elite actors for ulterior motives.

Socrates Versus Thrasymachus: Two Competing Views of Law

A maybe less-obtuse justification for originalism is simply the fact that the framers of a given constitution or statute have a better understanding of how laws should be enacted than latter-day interpreters. Thus, as the theory goes, when in doubt, judges should always defer to the original intent of the lawmaker because they were better informed in terms of the functional purpose of a specific law than judges fifty or one hundred years into the future. From a conservative standpoint, this argument is in some sense intuitively attractive because often “functionalistic” or “living constitutionalist” readings of laws do ultimately fall back on public opinion, which is not always the best arbiter—for a variety of reasons—in deciding on how a law should be interpreted. The reasons for this are myriad and often readily observable, but are perhaps best illustrated in the ancient dialogue between Socrates and Thrasymachus in Plato’s Republic—the question, in the words of Harry Jaffa, “of whether the people make the moral order [Thrasymachus] or the moral order makes the people [Socrates].”

So, even if it were determined that public opinion should play a critical role in the Court’s judgment (the “Thrasymachus” view), a typical originalist retort would be: is not the legislature, rather than the judiciary, a better channel in a democratic society to funnel public opinion into legislation? This especially holds in an era of unprecedented polarization where different parts of the country differ quite dramatically over many hot-button issues. Of course, the classic liberal rebuttal to this would be: certain fundamental rights cannot be denied, even if it goes against the will of the people. This commences a dialogue that is, at its core, quite revealing about how originalists see the world (i.e., more in line with Socrates over Thrasymachus). 

Although paying deference to the lawmakers’ original intent might frequently yield the “better” decision for conservatives (from the standpoint of a desirable public policy outcome), it beggars belief that the original lawmaker is always correct over the contemporary interpreter. It also defies common sense that lawmakers must always get it “right”—from either the perspective of conservative public policy or basic constitutional meaning, originalism must be inadequate in some cases. Case in point: Texas v. Johnson, a 1989 Supreme Court decision that ruled that burning the American flag was constitutionally protected speech. Justice Scalia, who authored the majority opinion, would often say in speeches and interviews that he disagreed vehemently with the outcome from a public policy standpoint, but from the standpoint of constitutional originalism, its reasoning was airtight. 

Conservatives often stop here without asking: why should it be correct that even in cases where the policy outcome is clearly at odds with a conservative ideology that the decision should be nevertheless upheld? Perhaps Scalia’s reasoning is sound from a ten-thousand foot view, but upon closer inspection, it would seem to rely on a number of erroneous assumptions. Speaking cynically, originalists have likely implicitly gambled that for the majority of cases, the older statutory reading is preferable to the newer one. Thus, certain political “losses” are permitted from time to time in order to strengthen the supposed philosophical coherency of the doctrine. Since originalism still produces the “right” outcome (from the standpoint of conservative policy preferences) more often than not, a few losses—such as the Johnson example—here or there are deemed worthwhile. In some cases, they are even celebrated for strengthening the alleged philosophical integrity of originalist doctrine. By periodically losing, it shows that policy preferences can occasionally take a backseat to the bedrock principles supposedly undergirding the Constitution. Hence, originalism must be true!

The problem with this view, however, is that it implicitly concedes that judicial decision making, at least with respect to constitutional interpretation, boils down to crude legal realism. Originalism prides itself as putatively circumventing rank legal realism—an aspersion originalists nevertheless unfailingly cast upon their liberal counterparts. If originalism carries any weight, it is because the Constitution’s principles are in fact inviolable—that is to say, not time-bound, but timeless. They are timeless because they are grounded in truth and thus should be upheld with moral fervency. If that be the case, and if the Constitution truly does not sanction same-sex marriage, as many originalists claim, then why would not a conservative majority jump to overturn a decision like Obergefell? Have they not conceded, by inaction, that other forces—public opinion, for one—are to take precedence over bedrock constitutional moral principles? 

Indeed, what ultimately is law than but an expression of morality? If truth is something to be safeguarded, and if the moral reasoning of the law is indeed sacrosanct, then should not judges resist the temptations of an animadverted public opinion? A less significant but still noteworthy point is that deeper inspection renders it unclear why the originalist view should be upheld always and everywhere, particularly when that understanding is clearly wrong or when the entire law was poorly constructed from the get-go. At least gauged with respect to how liberal justices reason, rarely does one find a Stephen Breyer or Elena Kagan voting with the conservative block on second amendment or abortion rights. They may deviate from time to time on a more tangential legal question, but on the fundamental, landmark cases they are almost always in lockstep together. That, at the very least, counterpoises a coherency that originalism lacks. 

 From a more pragmatic standpoint, the purported “inviolable” logic of originalism, as demonstrated over the Court’s recent history, has produced hackneyed results, where two or three originalist justices reach an entirely different opinion on purportedly the same legal principles. If originalism were inviolable, why would its advocates be at such loggerheads in a Bostock opinion, for instance? Or, going back further in time, in Casey, where conservative justices splintered in several diametrically-opposed directions? 

What also accounts for putative conservative justices, like David Souter or John Paul Stevens, drifting to the Left over the course of their tenures? Has this ever been counterbalanced by a liberal justice moving rightward in modern times? If not, why might that be? Could it perhaps have something to do with the logical incoherency of orginalist doctrine itself?

Natural Law: A Worthy Alternative

Ultimately, the goal of conservative jurisprudence should be to discover the best theory of objective truth that is compatible with the Constitution, and anchor itself to that theory. If the Constitution is intrinsically anathema to conservatism, then either the Constitution—or conservatism—should be ditched. 

Originalism was designed as a tool to help search for the alleged truth embedded in our founding documents. Foundationally, a conservative theory of jurisprudence rests on two audacious claims: one, there is a discernible understanding of objective truth that exists separate and apart from mere subjective experience; and two, such an understanding is contained within the founding documents themselves.

While the latter is certainly open to debate—and perhaps more now than ever—the former question indisputably has been best addressed and developed through the natural law tradition. Traditional scholasticism, which produced natural-law-based jurisprudence, and is perhaps best expressed through Catholic thought—particularly in the works of Thomas Aquinas—provides the most established tradition for objective truth because it is ultimately derivative of a metaphysical wellspring. According to the conventional Thomistic view, natural law is grounded in the traditional Christian understanding of God. Aquinas starts from the general definition that Law is a dictate of reason from the ruler over the community he rules. According to Aquinas, since God rules the world with reason, God has a reasonable idea by which to govern the world. The ruler who best aligns his reason with God’s will have achieved the best political community. 

 While today’s conservatives may shirk at the leap of faith required to accept natural law completely as a rational doctrine in itself, they might do well to remind themselves that the alternative to traditional metaphysics—the putative, incontrovertible truth claims of modern science which fundamentally inform legal positivism and liberal theories of constitutional jurisprudence—likewise incorporates bold assumptions about human nature that correspondingly depends on grand leaps of faith that, upon deeper examination, perhaps go even further than traditional, scholastic natural-law-based claims ultimately centered on a divine cosmology. 

Certainly, the morality of law must run coterminously with some phenomenological assumption about reality and human experience. If reality merely boils down to crude nihilism then laws must not serve any purpose other than to enforce the preferences of a ruling elite (the pure “Thrasymachian view”). Conversely, if there is a metaphysical common denominator that is at least partially discernible to human experience, and which already informs common sense assumptions about morality, then should not our laws comport with this standard, however imperfect it might be arrived at, particularly if that standard is deemed the highest of all possible immanentizable goods? 

Ultimately, these broader metaphysical truth claims need not be resolved in light of America’s longstanding legal tradition of promulgating laws that are at least watered-down derivatives of the natural law. Since natural law at least always partially informed the tradition of common law, then why meddle with it? If it is not broken, do not fix it! Allow instead the philosopher and theologian to resolve the more fundamental disputes. Given natural law’s significance, a recovery of these lost ideas may over the long haul prove to be a superior methodology to anything used currently, offering a unifying and formidable framework upon which to decree judicial edicts. In doing so, hopefully the Supreme Court would be restored as the august body it was designed to be, from which true justice flows readily down from the common altar provided by the inviolable natural law tradition. 

Suggested Citation: Paul Ingrassia, Rethinking Originalism, Cornell J.L. & Pub. Pol’y: The Issue Spotter, (Mar. 15, 2021), http://jlpp.org/blogzine/rethinking-originalism/.